STEP Spring Conference 2014

Transcription

1 London New York STEP Spring Conference 2014 Geneva Greenwich Hong Kong Tax Planning and the Court of Protection Julia Abrey Withers LLP Milan New Haven

2 Planning and professional issues Law Society Practice Note Gifts you must ensure that the client fully understands the nature, effects, benefits, risks and foreseeable consequences of making the gift, in order to enable them to form a view as to the wisdom of the proposed transaction Motivation Fact finding Capacity Benefits and risks Tax

3 Capacity- law and cases Gifts Re Beaney [1978] 'the degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect MCA 2005 s2 and 3 Wills 4 recent cases Client loses capacity mid-matter?... Blankley v Central Manchester and Manchester Childrens and University Hospital [2014] EWHC 1682

4 Gifts and Powers of Attorney General Power Day v Day [2013] EWCA Civ 280 Public Guardian Practice Note- Gifts (No2/2012) Amount? P s finances? Recipients? P s will

5 EPA/LPA- gift making powers EPA- Para 3(3) Sch 4 MCA 2005 LPA- s12 MCA 2005 Restrictions in the instrument Seasonal nature and anniversaries etc/customary occasions Charities Reasonable Day v Harris [2014] EWCA Civ 191

6 Maintaining third parties S12 MCA 2005 Re Bloom Re Strange Re Drew All 2012 EPA or LPA? Para 3 (2) Schedule 4 or S12?

7 Re Buckley [2013] COPLR 39- gift problems again Doing what you like? Unwise decision by an attorney? Doing what donor would have done? De minimis exception-part 1

8 Lasting Powers of Attorney- severed clauses D Lush Eld LJ p144 my attorneys may make gifts of the size and nature that I made prior to this LPA requests by my children for financial support are not to be unreasonably refused by my attorneys If the house is sold dispose of my chattels to those entitled under my will My attorney is authorised to grant gifts of up to 5,000 to family and also to provide interest free loans of up 10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorneys discretion

9 Gifts and Deputies The Deputy may (without obtaining any further authority from the Court) dispose of P s money or property by way of gift to any charity to which he made, or might have been expected to make, such gifts and, on customary occasions, to persons who are related to or connected with him, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of his estate

10 Recent cases Re GM [2013] COPLR 290 What are expenses? Gifts not in best interests? Reasonableness De minimis- part 2 Calling in the bond- part 1 Criminal justice system?

11 Re Joan Treadwell (Deceased) [2013] EWHC 2409 Visitor s discovery Reasonableness again Security Bond part 2 Magnetic importance Reporting

12 Statutory Wills NT v FS and Others [2013] EWHC 684 COP? Doing the right thing International expansion Scotland Ireland Australia and New Zealand Singapore Canada

13 Practice Direction 9F What is it for? Permission? Information required COP3 Respondents and persons to be notified Fees Annex

14 Getting it wrong. Informal arrangements JS v KB and MP ( Property and Affairs Deputy for DB) [2014] EWHC 483

15 Revocation of LPAs Re Harcourt : The Public Guardian v A [2013] COPLR 69 ECHR article 8 Can donor approve? Revocation and best interests Re DP Revocation and best interests again OPG or police?

16 Much more to read and learn Transparency in the Court of Protection guidance on the publication of judgements-[2014] EWHC B2 (COP) A dispute as to who should act as attorney or deputy. Whether a person should be restrained from acting as an attorney or deputy or that an appointment should be revoked or powers reduced. Where the sale of P s home is an issue. Where the property and affairs application relates to assets (including P s home) of 1m or more or to damages awarded by a Court sitting in public.