The Ministry of Justice has announced a refund scheme for those who were charged more than necessary for some deputyship fees charged between 1st April 2008 and 31st March 2015.
The overpayments occurred as the OPG had difficulty predicting costs as the amount of deputyship applications rose much faster than they had expected and the fees charged did not match how much it cost the OPG to supervise deputies.
For those already appointed as a Deputy for existing clients, there is no need to apply for the refund as the Office of the Public Guardian (OPG) will be in touch to arrange any refunds due. The scheme does not apply to fees paid to OPG Scotland, the Office of Care and Protection in Northern Ireland or the Court of Protection.
It is necessary to apply for the refund in the following circumstances:
- You previously had a deputy appointed to act on your behalf but are now able to make all of your own decisions; or
- You are acting as executor in an estate of somebody who had a deputy and has died. If there is no Will, an administrator can apply and if there is no estate administrator then a family member can apply.
How much you receive will depend on how much was paid and at what rate, how long you paid for and if there were any unpaid fees. Any refund received will also get 0.5% interest.
Refund of Deputyship Fees
The refunds can be applied for by completing the form at https://www.gov.uk/government/publications/claim-a-deputyship-fee-refund or by telephone.
The Refunds Helpline details are:
Telephone: 0300 456 0300 (choose option 6)
Textphone: 0115 934 2778
The helpline is open Monday, Tuesday, Thursday and Friday 9am to 5pm and Wednesday 10am to 5pm
The process can take up to 12 weeks for the refund to be received.
The deadline for refund claims is 4th October 2022.
Are You Due A Refund From The Office Of The Public Guardian?
If you registered a Lasting Power of Attorney between 2013 and 2017 then the answer may well be yes.
The Office of the Public Guardian (OPG) announced some time ago that it had calculated that those who had registered a Lasting Power of Attorney (LPA) between 2013 and 2017 and paid registration fee had been overcharges. This was on the basis that the fees charged at that time were not reflective of the cost of registering the documents. Refunds of up to £54 (plus any accrued interest) are now being issued.
So far, of the 1.8 million people eligible for the refund, only 200,000 have actually claimed it. The remaining 1.6 million people will need to apply for their refund by 1st February 2021. To apply for a refund visit http://gov.uk/power-of-attorney-refund or call the OPG’s contact centre on 0300 456 0300 and select option 6 to be put through to the refunds team. The process is very simple and is designed for people to be able to do to make the application themselves.
Lasting Power Of Attorney
An LPA is a document that sets out who you wish to make decisions on your behalf should you become unable to make them, this could be through illness, and equally through injury. Where no LPA is in place and someone becomes unable to make decisions on their own behalf, their family will likely need to apply for a Deputyship Order, a lengthy and expensive process. Even once the Deputyship Order is in place there are ongoing costs and supervision which do not apply in situations where an LPA is in place.
Even with the numbers mentioned above Solicitors for the Elderly (SFE) estimate that only 7% of the UK population have an LPA. Given the fact that most people are now living longer and illnesses such as dementia are becoming more prevalent many people are setting their families up for a very stressful and complicated future.
Solicitors For The Elderly
SFE is and independent, national organisation of over 1,600 lawyers, who provide specialist legal advice for older and vulnerable people, their families and carers. All members must have at least 3 years’ experience in this area of the law and have completed the Older Client Care in Practice Award. At Tollers, a number of our staff are members of SFE.
If you would like to further information regarding LPAs please contact one of our offices.
With dementia having overtaken heart disease as the nation’s leading cause of death, it is more important than ever that we all take the necessary steps to plan for our future.
A new report from Solicitors for the Elderly (SFE) and the independent think tank, Centre for Future Studies, has revealed a looming crisis in the UK with people leaving far too many decisions to chance. This is due to the ever increasing number of people living with dementia combined with the failure to plan ahead for mental incapacity. The full study can be found here.
75% of people in South East England admitted that they were worried about dementia and losing the ability to make decisions for themselves. However, 80% haven’t discussed their wishes on end of life care and treatment.
A health and welfare LPA enables someone to choose who they would want to make decisions about their care and treatment if and when they become unable to make them for themselves. Tollers recommend that all their clients make both a property and financial affairs LPA, and a health and welfare LPA, as none of us know what the future will entail. Most people want someone who they trust and who knows them well to be able to make these decisions, but interestingly the report showed that 68% of people in the South East incorrectly believed that if they became unable to communicate their own wishes, their next of kin could automatically do so on their behalf and specify what was to happen to them.
In response to the study a coalition of organisations are joining together to encourage people to tackle the taboo of talking about later life planning, and to get their plans in place so that decisions about their health and welfare are not left to chance. The campaign is being led by SFE (the specialist organisation that connects older and vulnerable clients with legal experts in older client law) and it calls on people to act now and talk to their loved ones and remove the stigma that currently seems to surround such discussions.
Lakshmi Turner, Chief Executive of SFE, said:
“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so. Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.
It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom, it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”
Tollers have a number of experts who can assist with the preparation of lasting powers of attorney, and who can help ensure that your wishes are carried out even in the event of your incapacity.
Each year, Tollers Solicitors host a full day Conference aimed at professionals who work with the elderly and vulnerable. Tollers are delighted to announce that this year it is to be held at the Kettering Park Hotel in Kettering on Wednesday 7th March 2018. The audience is often made up of Social Workers, Charities, Health Professionals, Financial Advisors and others. Its purpose is to provide expert information and updates in what is an ever-changing area of practice.
This year’s focus is “Contracts, Scams and the Digital Risk to Older Clients” and will mark Tollers’ fourth annual Elderly and Vulnerable Client Conference.
The annual conference features a number of guest speakers on a variety of topics, as well as speakers from within the firm itself and this year is no different. The 2018 conference will cover: care contracts in the home and in a care setting, with a talk from Barrister Lindsay Johnson, a talk on the protection of older people from scams by Nick Johns of Age UK and a very interesting demonstration from cyber-security firm Intaforensics around online risks.
Tollers have their own specialist Elderly and Vulnerable Client Unit (EVCU), which was set up initially by former Head of the team, Karon Walton, to give expert advice around Court of Protection matters and Lasting Powers of Attorney, as well as Local Authority and NHS assessments with regard to the funding of care. With this specialist team, Tollers have set themselves apart from other law firms to lead the way in what is a rapidly developing and niche area of law.
The EVCU team is made up of several legal professionals together with Panel Deputy, Martin Hill and Professional Deputy, Barry Rogers. The management of the EVCU has recently been taken over by Solicitor Tonina Ashby, following Karon’s move to become the new Chief Legal Officer for national organisation, Solicitors for the Elderly Ltd (SFE). Karon said “I am delighted that Tonina has taken up the role to head up the team and will continue the important job of providing comprehensive legal advice for older people and their families when they are faced with the complexities of this area of law. I am also pleased to continue my close association with Tollers as a Consultant to the firm.”
Tonina has worked in law for the past 9 years and joined Tollers in December 2013. Tonina successfully developed Tollers’ Trust and Estates work in the Milton Keynes area, and earned her reputation as “one to watch”. So it was no surprise that she has succeeded Karon as Head of the EVCU Team, where she will be based at the Northampton office. Tonina said, “I am excited to take up this opportunity and to develop the unit further and whilst I will be based in the Northampton Office, I will be covering all areas throughout Northamptonshire, Rutland, Bedfordshire, Hertfordshire and Buckinghamshire.”
Tonina and the EVCU team can assist with all applications to the Court of Protection including Deputyship applications, Trustee applications, Statutory Wills and Gifting. They also deal with queries about care funding and challenges to Local Authority funding and the management of client financial affairs under Deputyship Orders or Lasting Powers of Attorney.
Tollers ’conference will be held on Wednesday 7th March 2018 at the Kettering Park Hotel, Kettering Parkway, Kettering NN15 6XT. The conference runs from 9.30 until 4pm with registration starting at 8.30am and the cost of the ticket includes lunch and refreshments.
To book a place at this insightful and interesting conference Talk to Tollers Elderly and Vulnerable Client Unit on 01604 258558 or email Tollers Marketing Manager, Karen Nicholson on firstname.lastname@example.org
TOLLERS PROVIDE EXCEPTIONAL PEOPLE, EXCEPTIONAL SERVICE, EXCEPTIONAL DELIVERY
Veronica Male, a Chartered Legal Executive at Tollers says “Most people in good health do not think about arranging a Health and Welfare Power of Attorney. If you do not have one in place, it can be very difficult for the people you trust to ensure that you get the treatment and care you would have chosen for yourself, if you are unable to make those decisions for yourself.”
What is a Health and Welfare Power of Attorney?
It is a legal document that must be registered with the Office of the Public Guardian, that allows your chosen attorney(s) the authority to make decisions about your health and welfare when you are not able to do so.
If you do not have a Health and Welfare Power of Attorney decisions about your care and treatment will be made by doctors and social workers in your best interests, after consulting with your family. The person you trust would not be the decision maker and this could mean you may end up receiving care in a way that you would not have chosen for yourself.
Who can be your attorney?
Anyone over the age of 18 years and has the mental capacity to act as an attorney can be appointed by you.
The attorney should be someone you trust to act in accordance with your wishes and who will put your best interests first.
What is the process of arranging a Health and Welfare Power of Attorney?
You decide and choose who you want to be your attorney, you can appoint one person or several people. Choosing multiple attorneys can be useful, as if one of your attorneys is unable to act, the other attorneys can still act under the power you have granted them.
The attorneys provide their details and sign the Health and Welfare Power of Attorney to confirm that they are happy to act as your attorneys.
A person known as a “certificate provider” will discuss the power of attorney with you in private and then confirm that you understand the power you are giving to your attorneys. If you have a medical condition, that might affect your understanding of the attorneyship then a medical practitioner could be asked to be the “certificate provider” and will charge you for this service.
You will need to sign the document and then decide whether to register the Health and Welfare Power of Attorney now or keep it to register at a later date. The registration process can take between 12-14 weeks. Due to the length of the waiting time for registration, our advice is to register it straight away as your Attorney(s) may need to make a decision urgently.
When you are thinking about making a Health and Welfare Power of Attorney, you can decide whether your attorney has the right to make decisions about life sustaining treatment and you can indicate this in the document by completing Section A of the document. You can also use the instructions and preference boxes to give more detail.
The important thing to remember is that the Power of Attorney for Health and Welfare can only be used when you are unable to make those decisions for yourself.
So what decisions can your attorney make?
Your attorney make decisions on your behalf about medical treatment, where you live and what care you receive.
If you have granted the attorney(s) the authority in the document, to make life sustaining treatment decisions they will put those representations forward to your medical team. As an additional safeguard we recommend that a copy of your Health and Welfare Power of Attorney be lodged with your General Practitioner.
Veronica Male, goes on to say “Although the document may look simple, it is very important that you get independent legal advice to ensure you are appointing the right people to act as your attorneys and you understand the powers you are granting them.”
If you would like to know more about making a Health and Welfare Power of Attorney, Talk to Tollers on 01604 258558 and one of our specialist lawyers will be happy to help and advise.
The Ministry of Justice has announced a refund scheme for donors or their attorneys who registered powers of attorney for England and Wales between 1 April 2013 and 31 March 2017.
The scheme offers a partial refund for each power of attorney registered and applies to both Lasting Powers of Attorney and Enduring Powers of Attorney. Even if you registered several powers of attorney you only need to make one claim.
The partial refunds are detailed in this chart from the Government website
|When you paid the fee||
Refund for each power of attorney
|April to September 2013||£54|
|October 2013 to March 2014||£34|
|April 2014 to March 2015||£37|
|April 2015 to March 2016||£38|
|April 2016 to March 2017||£45|
The refund scheme has been set up so only the Donor, who is the person who granted the power of attorney, or Attorneys, the people appointed by the donor to act for them, can claim the refund unless the Donor has died or where the Court has appointed a Deputy. A Deputy can be appointed by the Court if the Attorneys have been removed or have died.
The refunds can be applied for online https://www.gov.uk/power-of-attorney-refund or by telephone if the donor has passed away, the donor does not have a UK bank account or if the Court has appointed a Deputy to act for the Donor. The telephone service can also be used by people who would find using a computer difficult.
The Refunds helpline contact details are
Telephone: 0300 456 0300 (choose option 6)
Textphone: 0115 934 2778
The helpline is open Monday, Tuesday, Thursday, Friday 9am to 5pm and Wednesday 10am to 5pm.
The Ministry of Justice advised the process could take up to 12 weeks for a refund to be processed.
On Thursday 15th June 2017 it is World Elder Abuse Awareness Day. Started by the UN in 2012, this global event looks to raise awareness of the abuse the elders in our society are subjected to and looks to raise awareness to prevent and expose the dangers.
Elder abuse can be financial, physical, sexual, emotional or is caused by neglect. The Action on Elder Abuse website claims Elder Abuse affects about 500,000 older people across the UK each year! The one thing each form of Elder Abuse has in common is that only around 6% of cases are reported.
This year’s theme as declared by the UN “Understand and End Financial Abuse of Older People: A Human Rights Issue.”
Financial Abuse in the UK takes many forms: out-right theft, fraud, misuse of property and Power of Attorney as well as denying access to funds. The risk factors of falling victim of financial abuse include: social isolation, cognitive impairment or other dependencies on the abuser. This year’s theme hopes to highlight preventing financial exploitation.
Karon Walton, Head of Tollers Elderly and Vulnerable Client Unit says: “It is so important if you or a loved one is subject to abuse that action is taken for it to stop immediately , this can be done in many ways but getting advice and help from a specialist will help you make an informed decision.”
Age UK have summed up the epitome of what World Elder Abuse Awareness Day hopes to achieve: ‘Sometimes all we need is a helping hand – be there for those who need support & report Elder Abuse’
Veronica Male, a specialist in Care Home Abuse and Neglect adds: “We support World Elder Abuse Awareness Day as it is so important for people to understand that this abuse occurs and that there are steps they can take to report and stop it”
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Tollers is proud to support Dementia Awareness Week which runs from 14-20th May 2017. This is a National event which promotes a better understanding of what a diagnosis of dementia can mean, how you can still live well with dementia, and the advice and support that can help you do this.
At the heart of this support is Karon Walton, Partner and Head of the Tollers Elderly and Vulnerable Client Unit and Veronica Male, Care Home Abuse and Neglect Specialist Lawyer. Both ladies got involved with the Alzheimer’s Society Dementia Awareness Online Poster Maker The aim is to raise awareness and asks everyone to unite against Dementia. The Alzheimer’s Society goes on to explain that Dementia is set to be the 21st Century’s biggest killer!
Get involved! Use the Alzheimer’s Society United Against Dementia App and share your support on social media!
There is lots of information and available from the Alzheimer’s Society on a variety to issues people face when you or a loved one may have dementia, from how to get referred for a diagnosis, to how you can get the right help and support to enable you to live well with dementia.
If you want to talk to someone about dementia Call the National Dementia Helpline on 0300 222 11 22 who can provide advice and information. In your local area, there will be events raising awareness of dementia and advice about the services and support you can access locally.
Compassion in Dying has launched a National Campaign called “Make it your Decision” to encourage people to reflect their wishes, feelings and beliefs in written legal documents.
Unfortunately, it is a misconception that “next of kin” have the say as to what treatment and care their loved ones receive. If a legal document such as an Advanced Decision or Lasting Power of Attorney is not put in place, whilst you are able to, then the decision maker in medical decisions will be a Doctor and in any welfare or care situation it will be the Local Authority.
It is so important that your wishes and views are recorded legally to avoid the situation of a decision being made for you that you may not have wanted yourself, if you were able to express your beliefs. Whilst your family do have a view and an opinion, they are not legally the decision maker, unless you direct that they are in legal documents. This may then cause problems with disagreements, as to decisions that are being made about you and could ultimately cause costly legal applications to The Court of Protection for a Judge to make the final decision.
This was recently seen in the case of PC Briggs where the Doctors and family were not in agreement with a decision to withdraw life sustaining treatment.
Briggs v Briggs & Ors  EWCOP 53 (20 December 2016)
Karon Walton, Head of the Elderly and Vulnerable Client Unit at Tollers says: “It is imperative that you have these discussions early with your family and put in place a Lasting Power of Attorney or Advance Decision, therefore your wishes are reflected and followed. If another person has to make a decision about you on your behalf they have the information to be able to make the decision in your best interests.”
Compassion in Dying’s campaign details can be found at Make it your decision.
If you wish to discuss putting in place a Lasting Power of Attorney or Advanced Decision Talk to Tollers contact The Elderly and Vulnerable Client Unit on 01604 258558
Earlier this week at The High Court, Justice Charles published his decision with regard to the very tragic case of Pc Paul Briggs.
Pc Briggs has been in a coma since July 2015 after he was involved in a road traffic accident and suffered a severe brain injury. Medical experts differ as to his condition one saying that he is in a persistent vegetative state and the other saying he is in a minimally conscious state to which he could regain consciousness.
The case was brought to The Court of Protection by his wife Lindsey, who stated that her husband’s wishes would be that he would not have wanted to live and that he would have wanted the withdrawal of medical treatment. At the High Court Justice Charles agreed with her and authorised that his treatment could be withdrawn. However, this may be appealed.
This case highlights the “best interest” test under the Mental Capacity Act 2005 in which it states that if a person is unable to make decisions for themselves, then whoever the decision maker is (in this case the Doctors) have to act in their best interests. The medical opinion from the Doctors at The Walton Centre where Paul is being treated stated that it was in his best interests to continue life sustaining treatment.
Part of what they would have had to consider is what the families’ views where and also what Paul would have wanted himself. This is known in law as the person’s wishes, feelings and beliefs. The Walton Centre and The Official Solicitor, who were acting as litigation in person for Paul, did not agree that there was sufficient evidence to withdrawal medical treatment as no Advance Directive had been done.
Pc Briggs did not make any Advance Medical Decision or Health and Welfare Power of Attorney and therefore had not written down his wishes, feelings or beliefs, but his wife and other family members gave evidence in court to say that he had firm views about life sustaining treatment.
Justice Charles said of the family “His family and those who know him best gave evidence with courage, dignity and at considerable emotional cost to themselves that has convinced me of what Mr Briggs would have wanted and would have decided was in his best interests if he had been sitting in my chair during the hearing”
After the announcement of the decision of the case, Karon Walton Senior Associate at Tollers spoke on BBC Radio 4 about Advances Decisions and Health and Welfare Powers of Attorney. Please listen to link here: http://www.bbc.co.uk/programmes/b0855895
This case highlights the need for everyone over 18 to consider making their wishes known through an Advance Directive or Health and Welfare Power of Attorney, so it is clear if you were is a similar situation your views would be legally documented and hopefully would avoid the distress of your family having to go to Court.
If you create an Advanced Directive then it is still the Doctors that make the decision about your treatment, but if you create a Health and Welfare Power of Attorney you can authorise your family or other trusted person to make the decision about you instead, but both still have to consider what is in your best interests. It is recommended that you seek legal advice before creating or entering into any legal Advance Decision or Health and Welfare Power of Attorney.
To see full details of judgment please see link: Lindsey Briggs -v- Paul Briggs (By his litigation friend, the Official Solicitor) & Others 20-12-2016 04:44 PM GMT
More information on Advance Decisions and Health and Welfare Powers of Attorney please contact our specialist team at Tollers.