Irwin Mitchell | Focus on Wills, Trust, Estates and Disputes | The ageing population – what does it mean for us all?

With advances in medical science and consequently our health,we are all living longer. Life expectancy is now 83 for women and 79 for men.A report issued by Age UK in December 2015 confirmed that the number of people over 85 in the UK is predicted to more than double in the next 23 years to over 3.4 million. 1 in 5 people alive today will live to see their 100th birthday.The statistics are great news for those who remain fit and healthy and have a long list of places they wish to see before they die.

Unfortunately, the reality is that later life brings a risk of dementia,which is now more likely to affect people in later life than some cancers, cardiovascular disease or stroke. 850,000 people are estimated to be living with dementia in the UK, of whom 773,502 are aged 65 years or over. By 2025, the number is expected to rise to 1.14 million.

Is our legal system equipped to deal with the consequences of the ageing population? The Court of Protection is the court with responsibility for the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.The court is vastly overstretched and the recent cutbacks are not helping. Applications in the Court of Protection are up year on year. The vast majority involve property and affairs matters.

So what can we do to avoid contributing to the growing problem? Obviously plan for the future. It sounds so simple but it’s not something that we as a population are very good at and it’s understandable. It is human nature not to want to talk about these things and the statistics speak for themselves as more than two thirds of us do not have a will. However, it’s not just making a will that is important as that only deals with your assets after death.

Making a Lasting Power of Attorney (referred to as an LPA) is just as important as making a will and it is something that we should all consider doing. It is a legal document which gives you some control over who should manage your financial affairs should you have an accident or succumb to an illness which means that you lack the mental capacity to look after your own affairs. If there is no LPA in place there can be a lengthy delay during which time the affairs of the injured or ill person can get into difficulties if nobody has authority to deal with them. An LPA can help to minimise stress and anxiety for family members at a difficult time. LPA registrations are thankfully increasing. There was a 34 per cent increase in LPA registrations between 2013 and 2015.

However, as a solicitor dealing with will, trust and estate disputes, I know only too well that even if people do plan for the future, things do not always go smoothly. I have frequently encountered disputes over LPAs. Disputes may arise in a number of situations. When a person makes an LPA, key family members are notified and this can lead to objections by family members who may try to argue that the proposed Attorney is not a suitable person. It may be that the person objecting just wants to have control over their family member’s financial affairs themselves,whether that be for innocent or cynical reasons.Disputes can also arise once an LPA has been registered if a person suspects that an Attorney is in fact not acting in the best interests of the person whose financial affairs they are looking after.This can range from innocent mistakes or recklessness, to full financial abuse.

The Office of the Public Guardian has responsibility for investigating complaints about Deputies or Attorneys but an individual can also make an application to the Court of Protection to remove a Deputy or Attorney if they think that they are not complying with their duties. If you are concerned about the financial affairs of a friend or family member or your family is engaged in conflict caused by any of these issues, then it may be possible to take legal action to change the status quo.That may involve changing their Attorney or possibly having a lay or professional Deputy appointed. It is often possible to resolve these issues without expensive Court action and mediation may be appropriate.

If you would like to discuss any of the issues raised or would like more advice please contact Paula Myers on 0113 394 6832 or email paula.myers@irwinmitchell.com.

Key Contact

Paula Myers