Do grandparents have a legal right to see their grandchildren?

Grandparents often play a beneficial role in their grandchildren’s lives. However, if the relationship between a grandparent and their children breaks down, it can mean that they may lose out on seeing their grandchildren.

Grandparents do not have an automatic legal right to have contact with their grandchildren and cannot apply for parental responsibility. It is mainly down to a child’s parents who they permit their children to spend time with.

For this reason, it is always advisable to try and deal with matters amicably. This can be difficult, particularly if a child’s parents have separated and one of them does not want you to see the child. However, by remaining calm, friendly and approachable, you stand the best chance of keeping the channels of communication open.

Court application by grandparents to see grandchildren

In the event that contact has broken down, it is open to grandparents to apply to the court for permission to apply for a Child Arrangements Order. While this sort of order is usually only available to those with parental responsibility, the court will look at each case individually and decide whether it is appropriate in any set circumstances.

Before you can apply, you will need to attend a mediation meeting, to see if the family can reach an informal agreement.

If an agreement is not reached, the mediator will be able to fill in a form certifying to the court that you have attempted mediation.

If the court agrees to allow you to apply for an order in respect of time with a grandchild, it will hear evidence from all parties and make the decision which it believes is in the best interests of the child.

The decision can include details of where the child is to live, with whom the child will spend time, when this will take place and what sort of communication will be allowed. This could include face-to-face contact, telephone calls or letters.

The court does place a value on time spent with grandparents and will take into account any tie that exists between grandparents and their grandchildren.

Other situations

If you wish to take on more of a parenting role for your grandchildren, for example, if their parents are unable to do this, then there is another option open to you.

You can ask the court to appoint you as a special guardian, giving you parental responsibility so that you can make decisions for the child without consulting the child’s parents. The local authority will carry out an assessment of you to ensure you are able to take on the role.

If granted, a special guardianship order will usually place the child with you until they are 18, although it is open to a parent to apply for the discharge of the order in the event that their circumstances change.

Staying involved

It can be beneficial for children to have their grandparents in their lives, and it has also been shown that in the case of paternal grandparents, where they stay involved with their grandchildren, their sons are then more likely to stay in their children’s lives.

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What happens in estate administration if an executor has died?

After someone’s death, the executor named in their Will is responsible for winding up their estate. If the executor dies, either before or during the estate administration, there is a process which must be gone through to find and appoint another executor.

The executor of an estate has the onerous task of collecting in estate assets, valuing and selling them, paying off any debts and Inheritance Tax, preparing estate accounts and distributing the estate to the named beneficiaries.

When choosing your executor, you should make sure that you select someone who is capable and who is willing to take on the role, which is usually time-consuming and can be complex. You should also consider appointing someone younger than you so that they are likely to be around to take the job on when the time comes. It is also advisable to appoint two executors, so that, in the event that one of them dies, the other one can administer the estate.

When the only executor dies before you

Ideally, in this situation you should make a new Will, appointing different executors. However, if this hasn’t been possible, then when the time comes, if any executor named in the Will has predeceased you, someone else will need to step in and apply to the Probate Registry for a Grant of Probate, giving them the authority to wind up your estate.

The Non-Contentious Probate Rules 1987 set out in order who is entitled to apply for probate. After the executor themselves, anyone who has been appointed to hold assets in trust for a residuary beneficiary is next, followed by a residuary beneficiary. The list goes on beyond this, should this category of person not be available, but usually it is the case that the main beneficiary or beneficiaries of the estate will take on the role. A maximum of four people can act as beneficiaries.

When an executor dies during estate administration

In the event that an executor dies after being issued with a Grant of Representation authorising them to wind up the estate, then the administration can be completed by any other jointly acting executor.

If there was only one executor and they have died, or if other named executors do not wish to act, then the executor named in the deceased executor’s Will is responsible for completing the administration of the estate.

This is called the chain of representation and effectively means that the executor will have to deal with the administration of two estates; the one in which they are named as executor and the original estate.

If the executor dies without making a Will, then the Non-Contentious Probate Rules apply as outlined before.

Appointing executors

To avoid the complicated situation where your estate is left without an executor, it is advisable to appoint two executors in your Will and to review these appointments regularly.

In the event that either of your executors becomes unwell, or the task of administering an estate is likely to be too complex or time-consuming for them to undertake, you should consider appointing a new executor in their place.

If you would like to discuss your options, we would be happy to hear from you.

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What are estate accounts?

Following someone’s death, their personal representative will wind up the estate, then prepare estate accounts. These accounts will include details of all the assets and liabilities in the estate.

When you make a Will, you will appoint someone to act as your executor. They will be responsible for collecting in all of the assets in your estate; valuing them, insuring them where necessary, clearing and selling or transferring any property, paying off debts, to include calculating and paying Inheritance Tax. As well as preparing full estate accounts and finally distributing your estate to the named beneficiaries.

It is a complex and time-consuming job and when you select someone to take on this role you should ensure that they are willing as well as capable. If you have not made a Will, then someone will need to apply to the Probate Registry for a Grant of Letters of Administration, giving authority for them to act in a similar capacity as your administrator.

What goes in estate accounts?

The personal representative, either the executor or administrator, has a duty to provide a full inventory of the contents of the estate if required to do so by the court. As well as a full account of the estate administration, referred to as estate accounts.

The accounts will start with a summary page, with details of the deceased’s name, date of death, date of any Will, the name of the personal representative and the names of the beneficiaries and the legacies they have been left.

All of the estate’s assets will be listed, to include money, property, valuables and other personal possessions and they should all be valued.

Similarly, all the estate debts should be included. This could be tax liabilities, credit card debts, loans and mortgages.

These figures will be needed at the start of the administration process, to enable the personal representative to apply to the Probate Registry for a Grant of Representation, authorising them to wind up the estate.

The accounts should include details of any Inheritance Tax which is due. Along with any exemptions which apply, such as spousal exemption, any nil-rate band or transferrable nil-rate band, residential nil-rate band or transferrable residential nil-rate band or charitable exemption.

A capital account will also be needed, with details of any change in the value of the estate during the administration period. This could also include any over- or under-estimated values. Estate income and any interest paid to the estate should be included, along with administration expenses. This could include solicitor’s fees, estate agency fees if a property is sold and Probate Registry fees.

Finally, the distribution account will show how the estate is distributed to the beneficiaries named in the Will.

Dealing with the administration of an estate is an onerous job which can take many months or even years to complete. If errors are made, the personal representative can be held personally liable, even if it was a genuine mistake.

For this reason, it is often preferable to appoint a professional to deal with the winding-up of an estate, as they will be used to preparing estate accounts.

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Increase in DIY Wills a cause for concern

As the problems of the pandemic continue, there has been a huge rise in the number of people searching online for instructions on writing their own Will.

With difficulties in visiting solicitors’ offices, it can be tempting to have a go at writing a Will yourself. However, it is far more complex than most people realise, and when mistakes are made it can cause disputes as well as lengthy and expensive court battles.

Pitfalls of a DIY Will

Everyone’s personal and family situation is different, so there really is no ‘one size fits all’ option when it comes to writing a Will.

Matters that a solicitor will consider include how best to manage your tax and Inheritance Tax situation to avoid your estate paying more than is essential. How to provide for children after your death, to include provision of a guardian, putting trusts in place, either for tax reasons or for your children.

Considering whether a life interest in an asset such as a house is appropriate to ensure that your children do not lose out on inheriting it and ensuring that a Will is correctly signed and witnessed.

If your Will is ambiguous or poorly drafted, then it could cause arguments between family members. If they choose to start legal action, then your estate might not be administered for a long time, even several years. It is also the case that much of the money left in your estate could be swallowed up in legal bills.

The courts have seen a steady increase in disputed probate cases over recent years, often as a result of Wills that have not been properly drafted.

If you have instructed a solicitor to act on your behalf, then this will go a long way to minimising the risk of a dispute.

Firstly, the Will should be correctly drafted, with clear and unambiguous language, and beneficiaries will be correctly identified and included. Your solicitor will also ensure that the Will is properly signed and witnessed; without this it will not be valid. The process is not always straightforward, particularly if the witnesses cannot actually be present, for example during a lockdown. There are special rules in place to cover this, and your solicitor will be able to ensure that they are properly adhered to and that your Will is in order and can take effect on your death.

Your solicitor would also be able to testify as to your intentions and your capacity, if these were ever questioned. They will speak with you, to understand your wishes, and before they draft your Will they will satisfy themselves that you are capable of understanding what you are signing. In the event that this is likely to be questioned, they would ensure that you have a Certificate of Testamentary Capacity signed by a medical professional.

If your Will is clear, well-drafted and written by a professional, it is less likely that anyone will bring a court case against it. A homemade Will can be easier to challenge and because of this, those who have been left out may feel that they have more of a chance of successfully doing so.

The cost of a Will professionally drafted by a solicitor is minimal when compared to the expense and disruption of a legal dispute following death. To give yourself peace of mind and reassurance to your loved ones, think about having your Will drawn up by a qualified lawyer.

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Are there disadvantages in having an LPA?

A Lasting Power of Attorney, or LPA, allows a trusted family member or friend to manage your affairs for you, in the event that you become unable to manage them yourself.

Having an LPA is usually considered a big advantage. If you should become incapacitated, your attorney will be able to step in and help you. When considering whether there are any disadvantages, it is worth also looking at the many advantages.

The advantages of a Lasting Power of Attorney

By putting an LPA in place, you can be sure that in the event you are unable to manage your affairs, your bills can still be paid and your financial concerns taken care of.

If you do not have an LPA, then your family would have to apply to the Court of Protection for the power to act on your behalf under a Deputyship Order. This is expensive, time-consuming and involves ongoing costs. It can also mean that the person dealing with your affairs is not the person you would have chosen. There could be a period of time before the order is granted when no-one is able to pay bills on your behalf, which could cause difficulties.

You can put an LPA in place both in respect of property and financial affairs and in respect of your health and welfare. You can choose different attorneys to deal with each of these aspects of your life.

The LPA in respect of your property and financial affairs can be put into effect at any time, meaning that you can give someone the power to go to the bank on your behalf or pay your bills if, for example, you find it difficult to travel.

A health and welfare LPA would not come into effect until you are unable to make decisions on your own behalf.

You can choose more than one attorney if you wish and you can also specify what powers they have and what decisions they can make on your behalf.

Potential disadvantages of a Lasting Power of Attorney

The main potential problem with an LPA is whether your attorney is trustworthy and will deal with your affairs on your behalf in the manner in which you would want them to.

It is important to consider carefully who you wish to appoint and only choose someone whom you trust implicitly. You should also ideally select someone younger than you who is more likely to be able to cope with the demands of being an attorney than someone who is of a similar age to you.

There is less scrutiny of someone who is appointed under an LPA than under a Deputyship Order. While this means that the LPA process is quicker and cheaper, it does mean that your attorney will have extensive powers to deal with your affairs without much oversight.

You need to have mental capacity at the point in time when you sign an LPA. Someone who has known you for two years or more can certify that you have mental capacity. Because this requirement has a relatively low threshold, there is a risk that someone could say you have capacity when in fact you don’t.

For this reason, it is advisable to put an LPA in place as soon as possible, and certainly well before the onset of any loss of mental acuity.

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Making a Lasting Power of Attorney for your business

Lasting Powers of Attorney offer huge benefits to individuals, but their advantages are often forgotten when it comes to businesses.

A Lasting Power of Attorney (LPA) allows someone to appoint a trusted representative to act on their behalf once they lose the capacity to do so. This can be in respect of their property and financial affairs or their health and welfare.

Similarly, if you are a business owner, you can put a business LPA in place that will appoint someone to run your business for you in the event that you become unable to.

In the event that you lose the ability to deal with your business affairs, it could cause extensive problems. For example, if no-one can access funds except you, your business could be unable to pay suppliers or staff and any bank accounts could be frozen.

With no-one able to make decisions, the business could effectively come to an end. Although it is possible to apply to the Court of Protection for an LPA, by the time this has been done, usually several months, irreparable damage is likely to have been caused. In addition, the appointment made by the Court of Protection might not be of someone you would have chosen yourself.

Appointing an attorney under a business LPA

You should choose someone who you believe could carry out your role in the business without difficulty. This may well be a different person to the family member or trusted friend whom you have chosen to act in respect of your personal financial affairs if they are unlikely to understand the intricacies of your business. You can put together detailed instructions on what powers you want to give your attorney and when they can use the powers. It is possible to register and use a business LPA straight away if you choose to.

For example, it is possible to appoint someone to act on your behalf while you are away, as well as in the future if you become incapacitated or if you are temporarily incapacitated.

You therefore have the scope to limit the powers you give to a single transaction or a single aspect of the business, while you are still able to manage your affairs yourself.

You can specify non-binding preferences, telling your attorney how you would like them to act, although they will not be legally required to follow any non-binding directions.

If you have several business interests, you would usually make a separate business LPA for each one, appointing the most suitable person in each case.

Which type of business is a business LPA suitable for?

An LPA works well for a sole trader and also for a partnership where there is no provision for incapacity in the partnership agreement.

Similarly, if you are a company director and the company’s articles of association do not include any information about what is to happen in the event of incapacity, you can put a business LPA in place.

It is advisable to seek legal advice in respect of a business LPA before executing one, to ensure it does not conflict with any existing regulations your business may have.

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Spousal maintenance

Spousal maintenance is a regular payment made by someone to their ex-spouse or civil partner. It will only be ordered to be paid where someone is unable to support themselves.

It is different to the maintenance payments made in respect of children and is intended to support the spouse to a reasonable standard.

When is spousal maintenance paid?

There is no automatic right to spousal maintenance, however where a spouse needs ongoing financial support that cannot be provided by a clean break, the court may order monthly maintenance payments to be made.

If a marriage or civil partnership was fairly brief, then spousal maintenance may only be ordered for a short time. However, if the marriage was lengthy or if one spouse cannot work, the payments may continue for life, although this is fairly unusual.

It is possible to insure spousal maintenance payments so that in the event that the spouse making the payments dies, the spouse receiving maintenance will receive a payout that they can use for continuing support.

Calculation of spousal maintenance

The amount ordered to be paid will be based on reasonable financial needs. The court will look at the anticipated future expenditure of each party in coming to a decision.

If one party has given up a career to raise children and their ability to earn has been diminished by this, then the court may take this into account and decide that lifelong payments are appropriate.

Alternatively, the court may consider that a period of a few years may be enough for someone to retrain or restart their career.

The maintenance payments can be altered, either upwards or downwards, in the future if either party’s circumstances change. If the paying party loses their job, the payments could be suspended for a period until a new position is found.

If the receiving party finds a job, then the maintenance payments may be reduced or ended if the court considers that there would not be undue hardship

Both parties are obligated to inform each other of any significant change in their financial or other relevant circumstances.

Nominal maintenance

A nominal maintenance order may be made in case one party’s circumstances substantially change so that they can no longer support themselves. In this event, they would have the option to ask the court to vary the order to provide them with enough maintenance to cover their reasonable living costs.

When will spousal maintenance payments end?

If no end date for payments is specified, then they will terminate when either party dies or if the party in receipt of the payments remarries or enters into a civil partnership. Living with someone else is not necessarily enough to end the payments, although it may be a persuasive argument in favour of this.

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What is a Living Will and how can I write one?

A Living Will, also known as an advance decision or advance directive, is a document by which you can refuse medical treatment in the future. It can be used if you become unable to communicate or unable to make decisions for yourself or if you become terminally ill.

You must be over the age of 18 to make a Living Will and also have the mental capacity to understand the nature of the document.

What goes in a Living Will?

A Living Will is used to refuse certain medical treatments in particular situations, to include life sustaining medical treatment. It must clearly set out the treatment that is being declined and state the situation in which this is to happen.

The statement should be unambiguous and contain as much information as possible so that those reading it understand what your intentions are. The document should also state that it is only to be used when you no longer have the mental capacity to make a decision.

Is a Living Will legally binding?

The Mental Capacity Act 2005 requires medical staff In England and Wales to follow the directions set out in an applicable and valid Living Will. There will be consequences for them if they fail to do this. It is important that the existence of a Living Will is brought to their attention, so you should advise your GP or other medical practitioner that you have signed the document. You can also ask for their input before drawing up the Living Will and also request that they sign a certificate confirming that you had mental capacity at the time you executed the document. It is also advisable to discuss the existence of your Living Will with your family so that they are aware in advance of what your wishes are.

What a Living Will cannot do

You cannot request medical treatment in a Living Will, only decline it.

In addition, you cannot ask for any procedure that is unlawful or use it to refuse basic treatment or food and water.

You cannot appoint someone to make decisions on your behalf in the Living Will and you cannot leave your possessions to someone; a normal Will should be used for this purpose.

If your Living Will is not clear, or you suffer from a different condition to those specified in the Living Will, your medical team can decide what is in your best interests. If the document is ambiguous, it may not be enforceable.

A health and welfare Lasting Power of Attorney

You can also appoint someone to make decisions about your health and welfare, should you become unable to do this yourself, by executing a Lasting Power of Attorney (LPA). There is also the option to sign an LPA giving someone authority to deal with your financial affairs.

A health and welfare LPA may override a previously made Living Will unless it is drafted to avoid this. A Living Will made after a health and welfare LPA may similarly override the LPA. For this reason, it is important to seek legal advice before signing either document, to ensure that your decisions are not only properly documented, but that they will take effect in the way that you wish.

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Should I make all my children attorneys on my LPA?

Your Lasting Power of Attorney (LPA) is an important document. It gives your chosen attorney the power to deal with your affairs on your behalf, should you lose the capacity to do so yourself. But is it a good idea to appoint your children?

You can make an LPA giving someone the power to deal with your property and financial affairs and also an LPA in respect of your health and welfare.

Each LPA can have up to four attorneys. They can be required to act all together, so that they all have to approve each decision that is made on your behalf, or you can give them each the power to make a decision on their own.

You can also appoint a substitute attorney, should your first choice be unable to act when the time comes.

Who should I choose as my attorney?

People often choose their spouse in the first instance, with children as their secondary choice.

You can also choose a close and trusted friend or other relative. If you do not have anyone to take on the role, it is also possible to appoint a professional attorney.

Whoever you choose, you should discuss the appointment with them, to ensure that they are happy to take it on.

Choosing your children as your attorneys

If you decide to appoint your children, you should consider whether you believe they will cope with the role. If you appoint more than one, then you will also need to decide whether you want them each to have the power to make a decision unilaterally, or whether you want them all to agree on a decision before it can be taken.

Clearly, it will be important to take into account how well your children get along together. It may be better to just appoint one of them to act alone.

The job can be time-consuming and also require some financial acuity. It may be that one of your children is more suited to the role than another, simply because they have more time available or are more familiar with administrative tasks.

Talking about the future

As well as discussing the appointment with your potential attorneys, you should also give them some guidance as to how you would like your affairs dealt with.

This can be particularly important in respect of a health and welfare LPA, where your attorney will be making decisions about where you live, your day-to-day living and your medical care. You can leave guidance about whether or not you want to receive life-sustaining treatment, should the time come, but it is often good to have a conversation with your family and your attorney in advance so that they understand your wishes.

Putting an LPA in place can give you the peace of mind of knowing that a trusted attorney will step in should you become unable to manage your own affairs. It will also make matters easier for your family, who would otherwise have to make an application to the court for the power to act on your behalf.

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Your Lasting Power of Attorney checklist

It is always advisable to have a Lasting Power of Attorney (LPA) in place to ensure that a trusted friend or family member can deal with your affairs on your behalf, should you become unable to manage them. We take a look at the decisions you will need to take before signing an LPA.

There are two types of LPA you can put in place, an LPA in respect of property and financial affairs and an LPA in respect of your health and welfare.

They both allow your chosen attorney to take decisions on your behalf, should you be unable to do this for yourself. In addition, the property and financial affairs LPA can be used while you still have capacity, for example, if you want someone to be able to go to the bank on your behalf.

When you have your LPAs drawn up, you will need to consider the following points:

Who will act as your attorney

You can choose up to four attorneys to act on your behalf and you can select different attorneys for each of the two different LPAs if you wish to. They need to be aged over 18.

They should be people you trust implicitly and who you think will look after your affairs in the way that you would want. This could be a family member or close friend, or if you do not have anyone in your circle who can act, you can appoint a professional, usually an experienced solicitor.

You can also appoint a substitute attorney, in case one of your choices is unable to take on the job when the time comes. You should discuss the appointment with your prospective attorney and let them think it over, so that they are certain that they can cope with the responsibility and that they have the time to give to the role.

If you appoint more than one attorney, you will need to decide whether they will have the power to act jointly, so that both of them will need to agree on a decision on your behalf. Or jointly and severally, meaning that either of them can make a decision on their own.

What authority your LPA will give to your attorney

You can limit the power you give under your LPA to specific jobs, for example, to sell a property, and you can impose restrictions, such as not to carry out certain actions unless you have to move into a care home.

Wishes that you would like your attorney to consider

With regard to your health and welfare LPA, you can give your attorneys guidance as to the decisions you would like them to make. This can include your preferences for where you will live, what medical care you wish to receive and whether you want life-sustaining treatment, should the situation arise.

Peace of mind

If you do not have LPAs in place and you lose the ability to make your own decisions, your loved ones will have to apply to the court before they can act on your behalf. The process is far more complicated than it is if an LPA has been signed.

Putting LPAs in place for the future can give you the peace of mind of knowing that, should the time come, your trusted attorney will be able to deal with your affairs on your behalf as you would wish them to.

For your own personal estate planning needs, you’re welcome to book a call with an expert via our scheduling window below: