A USEFUL GUIDE TO: SEIZE THE DAY – READY FOR THE NEXT

All information is given as a guide only, not as advice.

There are several things that will make your life easier and the work of those who take responsibility for your care when you become unable to make your own decisions.

Officially nominating:

• A Next of Kin
• A Power of Attorney 
• An Executor of your Will

Officially completing 3 documents:

• a Will
• a power of attorney for finance form
• a  power of attorney for health and care forms 

Successfully completing these documents will relieve you of anxiety and be invaluable to those to whom you have nominated and who have accepted the responsibility of ensuring your wishes are upheld.

Next of Kin

The term has no legal definition in the United Kingdom. An individual can nominate any other individual as their next-of-kin. There is no requirement for the nominated person to be a blood relative or spouse, although it is normally the case. Someone who has no close family (or who has little or no contact with their surviving family members) may decide to list someone outside their family as their next of kin, for instance a friend or a neighbour.

The nominated person must agree to the nomination, otherwise it is invalid. The status of next-of-kin confers no legal rights and has no special responsibilities, except as referred to below in the specific context of the Mental Health Act.

The status of next-of-kin does not in any way imply that they stand to inherit any of the individual’s estate in the event of their death. The intestacy rules stipulate who inherits automatically (in the absence of a will); an individual can make a will and nominate other persons. If a minor inherits (children inherit from parents even in the absence of a will), then, until the child is 18 years of age, there is a “trust” imposed, which means that the executors or trustees of the will remain responsible for the assets until the child is 18. The term “next of kin” should not be confused with parental responsibility.

In the context of health care, patients are often asked to nominate a next-of-kin when registering with their general practitioner, or alternatively on admission to hospital. Hospitals will then notify the next-of-kin that the patient has been admitted or if there is any change in their condition. If the patient is unconscious or otherwise unable to state their next-of-kin, hospitals will usually list their nearest blood relative, though there are no specific rules. Doctors attempt to seek the views of the next-of-kin when considering decision making for unconscious patients or those who lack capacity. The next-of-kin has no power to make any decisions regarding medical care, only to advise, and can neither override the previously stated wishes of the patient nor prevent the medical team acting in what they consider to be the best interests of the patient.

Traditionally, unmarried partners (especially same sex ones) were often excluded by certain institutions, but this has changed in recent years due to the increase in cohabitation in the UK, and in diverse families, such as those formed by unmarried partners with children (47.6% of children were born outside marriage in 2012). As a result of these social changes, the policy in most NHS trusts is to ask a person on their admission to hospital to nominate their next of kin formally.

Powers similar to next-of-kin as defined in other jurisdictions can be explicitly delegated to another person using lasting power of attorney, under the provisions of the Mental Capacity Act 2005 (note that this Act does not relate specifically to mental health and is largely unrelated to the Mental Health Act).

The Mental Health Act 1983, Section 26 replaced the traditional term next-of-kin with “nearest relative’.

Wikipedia 2019

MAKING A WILL

Visiting a stationery shop and buying a ready made Will form or employing a solicitor to make your Will are viable options, but there are also websites that allow you to make a will securely online.

Wills are usually written by a solicitor, but you can do this yourself or use a less expensive ‘Will writing service’ (often done by retired staff from solicitor’s offices).

https://www.gov.uk/make-will

Your Will should set out:

• who you want to benefit from your Will 
• who should look after any children under 18
• who is going to be your executor to sort out your estate and carry out your wishes after your death 
• what happens if the people you want to benefit die before you

You can get advice from a professional if your Will is not straightforward, for example:

• you share a property with someone who is not your husband, wife or civil partner
• you want to leave money or property to a dependent who cannot care for themselves
• you have several family members who may make a claim on your Will, such as a second spouse or children from another marriage
• your permanent home is outside the UK or you have property overseas
• you have a business

You can keep your Will at your home or store it with:

• your solicitor
• your bank
• a company that offers the storage of Wills – you can search online the London Probate Service – read full guidance on storing your will with the Probate Service (leaflet PA7)

You should tell your executor (the person you’ve chosen to carry out your Will), close friend or relative where your Will is.   © Crown copyright 

“GOV UK Making a Will” and “Making a Will Age UK” are informative websites.

WHAT TO DO WHEN SOMEONE DIES -‘TELL US ONCE’

https://www.gov.uk/after-a-death/organisations-you-need-to-contact-and-tell-us-once

‘Tell Us Once’ is a Government service that lets you report a death to most government organisations in one go.

When you register the death the registrar will:

• let you know if the service is available in your area
• give you the phone number
• give you a unique reference number to use the Tell Us Once service online or by phone

Before you use ‘Tell Us Once’

You’ll need the following details of the person who died:

• date of birth
• National Insurance number
• driving licence number
• vehicle registration number
• passport number

You’ll also need:

• details of any benefits or entitlements they were getting, for example State Pension
• details of any local council services they were getting, for example Blue Badge
• the name and address of their next of kin
• the name and address of any surviving spouse or civil partner
• the name, address and contact details of the person or company dealing with their estate (property, belongings and money), known as their ‘executor’ or ‘administrator’
• details of any public sector or armed forces pension schemes they were getting or paying in to

You need permission from the next of kin, the executor, the administrator or anyone who was claiming joint benefits or entitlements with the person who died, before you give their details.

Organisations ‘Tell Us Once’ will contact

‘Tell Us Once’ will notify:

• HM Revenue and Customs (HMRC) – to deal with personal tax (you need to contact HMRC separately for business taxes, like VAT)
• Department for Work and Pensions (DWP) – to cancel benefits, for example Income Support
• Passport Office – to cancel a British passport
• Driver and Vehicle Licensing Agency (DVLA) – to cancel a licence and remove the person as the keeper of up to 5 vehicles (contact DVLA separately if you keep or sell a vehicle)
• the local council – to cancel Housing Benefit, Council Tax Benefit, a Blue Badge, inform council housing services and remove the person from the electoral register
• Veterans UK – to cancel Armed Forces Compensation Scheme payments

HM Revenue and Customs (HMRC) and the Department for Work and Pensions (DWP) will contact you about the tax, benefits and entitlements of the person who died.

‘Tell Us Once’ will also contact some public sector pension schemes so that they cancel future pension payments. 

They will notify:

• My Civil Service Pension
• NHS Pension Scheme
• Armed Forces Pension Scheme
• pension schemes for NHS staff, teachers, police and firefighters in Scotland
• local authority pension schemes, except where ‘Tell Us Once’ is not available

There is a different process to update property records if the person who died owns land or property.

If ‘Tell Us Once’ is not available

You will have to let the relevant organisations know about the death yourself if:

• your local register office does not offer the Tell Us Once service
• you choose not to use it
• the person died abroad in a country where ‘Tell Us Once’ is not available. 

The ‘Tell Us Once’ service is not available in Northern Ireland or the following local authorities: Brighton and Hove, East Sussex, Eastbourne, Harrow, Hastings, Lewes, Liverpool, Manchester, Medway, Rother, Wealden.

LASTING POWER OF ATTORNEY

The completing and registering can be done by yourself or by a solicitor.

There are two formal forms to complete to register your Power of Attorney.

 1. Financial 

 2. Health and Care.  

There are three ways to complete the forms.

1. It is possible to complete the forms directly on line.
2. It is possible to download forms from the internet and post them to the Office of the Public Guardian.  If you wish to have a form sent to you apply by post to: Office of the Public Guardian, PO Box 16185, Birmingham B2 2WH
3. A Solicitor will complete and register your personal Power of Attorney forms, but it is considerably cheaper if you are able to do it yourself.  

Power of Attorney will only be activated if you ask for it to be or it is activated because you are deemed unable to make decisions. If you activate it while you still have the capacity you can deactivate it if you change your mind, while you still have capacity.

If you die or become unable to make your own decisions and have not completed the Financial form you will be referred to the Court of Protection who will make all the necessary Financial decisions on your behalf.  If you have not completed the Health and Care form the medical profession will make decisions for you; your next of kin or family may not legally be able to direct your care as they feel you would have liked it.  

If you have completed but not registered the forms your appointed Attorney can register it when the need arises.  It is your choice. If you wish to remove your forms from the register you must tell your attorneys and let the Office of the Public Guardian know so they can remove the LPA from the register. (Address above)

An Enduring Power of Attorney made before 2005 is still valid; this is for Finance and it is accepted, but it is not as comprehensive as the new Lasting Power of Attorney. It will be necessary to complete a separate Power of Attorney for Health and Care.

What is a Power of Attorney?

A Power of Attorney is a person you nominate to act on your behalf through the system of Power of Attorney.  It is sensible to do this before you become unable to take decisions.  If you have not made a Power of Attorney before you lose mental capacity it is necessary to have the court set up a safe system through The Court of Protection.

Giving someone Power of Attorney over your Finances and Health and Cares does not come into effect until you ask for it to happen or you are not able to make your own decisions.

You can cancel your Lasting Power of Attorney at any time, even if the application has been registered, but you must have the mental capacity to make that decision.

Advice for Attorneys: Personal Welfare

Having an LPA (Lasting Power of Attorney) over someone’s personal welfare may mean you need to make decisions about the healthcare and welfare of the person you are looking after.

If you have this power, you may have to decide:

• where the person is to live
• whether a care home or a nursing home is best for them, and which one
• whether the person can continue to live at home with help from social services

You will be able to decide if the person should:

• receive healthcare treatment
• not receive a particular healthcare treatment
• stop receiving a particular healthcare treatment

Some people who have a progressive illness sometimes make a decision about whether they would want a particular treatment in the future. They write down or tell others these wishes while they are mentally well, or have “mental capacity”.

If the donor made a decision to refuse future medical treatment in advance of losing their mental capacity, you can not override their decision unless the Lasting Power of Attorney was made later and specifies that you have the power to do so.

What personal welfare power of attorney can not do:

• Refuse any medication prescribed by a responsible clinician if the person has been sectioned or is on leave from hospital
• Make decisions about where they should live if the donor is under a guardianship order
• Make a decision about life-sustaining treatment without checking whether the person has made an advance decisions about this.

Power of attorney automatically ends if:

• The attorney or donor dies
• The attorney or donor becomes bankrupt 
• A marriage or civil partnership between the donor and the attorney is dissolved or annulled
• The attorneys lack the mental capacity to make decisions.
• The Court of Protection can cancel an LPA if an attorney isn’t acting in a person’s best interests and is making excessive “gifts” to themselves or others.
• The enduring power of attorney (EPA) is cancelled.

(To cancel an unregistered Enduring Power of Attorney(EPA), you’ll need to sign a formal document called a Deed of Revocation. You may wish to seek legal advice first.  You can cancel an unregistered EPA at any time while you have the mental capacity to do so.  If the EPA has been registered, you can not cancel it except by permission of the Court of Protection.)

REGISTERING A POWER OF ATTORNEY

The forms are registered when they are sent to the Office of Public Guardian either online or in a paper copy. Currently £82 per form is charged for this service, there are reductions available for people on a low earning income.  The service can take several months.  There are advantages to registering your Power of Attorney forms earlier than you need them, particularly if there are corrections that need to be made; changes cannot be made after the Donor has lost the ability to make decisions (capacity).  You can decide to activate the Financial Power of Attorney at anytime, the Health and Care Power of Attorney is automatically activated when you are unable to make decisions.

WHAT IS A SOCIAL MEDIA WILL?

There is helpful information from the Law Society about making A Social Media Will; this Will is not compulsory; it gives a named person permission to exercise your wishes for the disposal of your online accounts if you are unable.

– The Law Society (UK) –

“If you have social media profiles set up online, you should create a statement of how you would like your online identity to be handled. Just like a traditional Will helps your survivors handle your physical belongings, a social media will spells out how you want your online identity to be handled”.

Details will be needed for:

• PIN or passwords for your computer, tablets and smartphones Voicemail
• Bank PINs and account numbers
• Loyalty cards, membership numbers, and gift cards
• Medical IDs and insurance numbers
• Wi-Fi passcodes
• Social Media; Facebook, Twitter, Instagram, LinkedIn etc
• Web based photo libraries
• Shopping/payment accounts such as eBay, PayPal, Amazon
• Recurring subscriptions and payment cards they’re charged to
• Copyrighted materials, trademarks, etc
• Information or data that is stored electronically, online, in the cloud, or a device.

Susi Richardson  February 2019

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