Choice not chance

Surrounded as we are
by the media and celebrities manipulating our emotions, occasional stories do still leave us genuinely moved. The story
of footballer Fabrice Muamba, who collapsed with heart trouble mid-game, and has now recovered but retired from the sport, was one.

Equally moving was a recent Radio 4 interview with a man
in his late thirties with an early dementia condition, which killed his father in his forties
and left his brother in a nursing home, speaking amazingly positively, even though his prospects seemed awful. While in that case it was genetic, dementia can happen at any time. Julianne Moore’s moving portrayal in Still Alice of a woman coping with dementia in her fifties won both a Bafta and an Oscar.

It’s good when these stories, fictional or real, make us stop and think about the risks of death or losing capacity in
youth or middle age.

MoJ campaign

Have you seen the Ministry
of Justice’s (MoJ) ‘Planning for
the future: Choice not chance’ campaign, which targets the
25 to 50 age group, encouraging people to make wills and lasting powers of attorney (LPAs), and promoting organ donation?

The posters issued include one showing a rugby scrum with the statement ‘Accidents happen’. Another has the words ‘You think it will never happen to you: Make a lasting power of attorney’ over an image of a patient on a hospital trolley, along with the message that
an LPA ‘means your loved ones
can step in and manage your
affairs if you can’t’. Good, simple messages. I hope the campaign (started in February) grabs attention sufficiently to encourage many
to make those documents.

Not surprisingly in our do-it-yourself age, the campaign advises: ‘You can write your will yourself, but you should get legal advice, for example from Citizens Advice, to make sure your will is interpreted in the way you wanted.’ Sadly, it doesn’t even mention lawyers at that point.
So, it’s worth following up with your clients, encouraging, for example, those who have bought properties but made no will, or parents with children or grandchildren, to see the value
of getting the right documents
in place in case disaster strikes.

Practical steps

A few issues to address:

• Particular needs of younger families. Death or lost mental capacity can have serious implications for anyone with children under 18 or dependants. So, it’s important to highlight the potential to appoint guardians by will and to give will trustees the right powers to use any money or property. There are many elements that self-made wills might miss. The need to deal with mortgages and debts can make the task of an executor or attorney more complex. How can you address these problems?
• Choice of the right executor or attorney? One practical issue with making a will or LPA when young is the need to choose someone who might ‘last’ for many years. Appointing replacement attorneys is a great feature of LPAs, covering the possible death of an attorney, and one great advantage over an enduring power of attorney. But, it doesn’t solve the problem of your attorney moving miles away, or growing apart from you, and LPAs can’t be amended by the equivalent of a codicil. Donors therefore need careful advice about the best people to appoint, and we can play a key role in asking questions to help them reach good conclusions. Clients also need to keep those appointments under review. Sometimes a new LPA is the only answer.
• Acting for colleagues and their families. You should pay careful attention to the Law Society’s practice note, issued in January 2015, when acting for members of staff or their relatives. We need to ensure we have addressed the issues and can show that it is appropriate for us to be drafting the will. The closer the working relationship with your colleague, the greater the scrutiny. It’s very different making a will for the person next to you with whom you’ve worked for years and someone in another office of whom you see very little. That said, it’s amazing how many people working for law firms appear to have no will, let alone an LPA.
• ‘Have you had that difficult conversation with your parents?’ This is a further question the MoJ poses in its posters. ‘Have that conversation to make sure their choices count,’ it concludes. This begs the question of how to ensure it is ‘their choices’ and not the children’s that end up reflected in the documents. We have a valuable role in protecting clients from undue influence, coercion, and fraud, if only they will let us do so.

Whatever the limitations of the MoJ campaign, the solicitor profession needs to build on it and the public awareness it brings. Now, we must ensure our clients follow this up by making wills and LPAs to plan for their future, whatever that may be. SJ

John Bunker is head of private client knowledge management at Thomas Eggar