Capacity and undue influence: protecting individuals who lack capacity to make their own decisions

With significant changes to Inheritance Tax (IHT) reliefs for agricultural and business property due to take effect in approximately seven months, affected individuals are exploring every available planning strategy to mitigate the impact. For those who are asset-rich but cash-poor, the prospect of a 20% IHT charge on death is deeply concerning and threatens the continuity of long-held family assets.

The English trust has a fascinating history. It dates back to medieval times, when knights heading off on crusade would hand over their land to someone they trusted to manage it in their absence. This practice laid the foundation for what we now know as the legal split between ownership and benefit: trustees hold the legal title, but the real value belongs to the beneficiaries.

There have been a flurry of media reports that the Treasury is considering changes to the IHT regime at the next Budget in the form of a gifting cap or amending the tapering rules on gifting. The reports make clear nothing has been decided but the kite-flying will no doubt focus minds on estate planning in the weeks ahead.  

Is your camel’s back broken yet?  Or will this year’s Autumn Budget be the proverbial last straw?

Rachel Reeves’ Autumn Budget in 2024 not only brought in an immediate increase to capital gains tax (CGT) rates, but also announced a swathe of changes to the taxation of international individuals which mostly took effect on the 6th April this year. 

In this blog we consider whether a pre-nuptial agreement is a good option to help protect the estates of vulnerable individuals in the event that their marriage should come to an end.

This case study highlights the inspiring journey of a young man, Louis who was born with cerebral palsy (CP) and with the support of his Deputy, Deputyship team and family has transformed his passion for dogs into a small business, overcoming numerous challenges and creating a successful venture. His story not only exemplifies the power of perseverance and support but also showcases how individuals with disabilities can thrive in the business world with the right resources and mindset.

The Child Brain Injury Trust reports that every 90 seconds, someone in the UK is admitted to hospital with an acquired brain injury, and every 15 minutes, a child in the UK acquires a brain injury. While many will make a full recovery, for others, this may impact on their ability to make certain decisions as adults.

The increase in the value of cryptoassets has undoubtedly contributed to the continued interest and adoption of this still relatively new asset class across organisations and individuals. The ease of purchasing, selling or transferring a cryptoasset has improved significantly over the last few years (and which has in part stemmed from the development of the regulatory environment). However, there is still a technical barrier to entry. This presents a practical problem; if your assets pass to your loved ones on your death, how do you ensure that they are able to actually access and benefit from any cryptoassets that you hold?

Having poured blood, sweat and tears, not to mention money and time, into building a successful business, the loss of mental capacity of a shareholder, director or partner could be devastating for a business and that person’s wider family unless the necessary safeguards are put in place for these key individuals.

As a business owner, you need to think about what would happen to your business if you were unable to make decisions – would someone be able to authorise payments or enter into contracts and keep the business running day-to-day? If not, fundamental business decisions may not be possible and, within a very short period of time, the business may no longer be able to trade. This can have adverse consequences for your family finances if they are reliant on income from the business.

As family lawyers, we are used to meeting our clients at a time when they are at their most vulnerable. This is intensified when addiction is present within a family. Divorce or separation places an added burden upon everyone involved and those individuals are likely to have experienced or still be experiencing the destruction that addiction can cause, some of it obvious and some of it less so.

Being alive to the particular challenges which may present themselves in a divorce involving addiction is essential but this should be balanced with an understanding that the issues are likely to be different for each client and for each family.   

We increasingly encounter situations where a vulnerable person may have been financially abused by a third party. A recent study by STEP found that financial abuse is increasing and it is most prevalent where there is uncertainty about whether a person lacks capacity or their decision-making ability is in decline.

Supporting a loved one with capacity issues can be very challenging, as well as emotionally distressing. In this article we explore some practical considerations and offer tips and advice to support a loved one in these circumstances.

For a Will to be valid, amongst other things, the person making the Will (known as the “testator”) must be of “sound mind”.

The test for capacity to enter a prenuptial agreement is the same as the normal test for capacity (mentioned in Blog 1) and the individual must be capable of understanding their assets and the nature and effects of the contract they are entering into.

An executor/executrix is a person named in a Will who is responsible for carrying out the instructions in a person's Will and administering their estate. Executors can have a number of responsibilities following someone’s death, including: securing, insuring and clearing the deceased’s property, collecting in all the deceased’s assets, paying outstanding bills, distributing the estate, arranging the funeral and applying for probate.

When a trust is created, the person setting-up the trust (known as the “settlor”) usually appoints trustees who become the legal owners of the assets in the trust, which they hold for the benefit of others (known as the “beneficiaries”). For example, when a person dies, a trustee may distribute capital and income from the deceased’s assets that are held in a Will trust, to the people named as beneficiaries in the deceased’s Will.

Capacity to litigate involves an adult who is a party (or intended party) to proceedings in court.

A Lasting Power of Attorney (“LPA”) is a formal document that, once registered by the Office of the Public Guardian (“OPG”) authorises others, known as “attorneys”, to act on behalf of another who is unable to make decisions for themselves. 

A gift can be anything of value, such as cash, personal possessions and property. If a person chooses to dispose of an asset for less than it is worth this is also considered to be a fit. The act of giving a gift is typically done to express care, appreciation, celebration or goodwill. Gifts are often exchanged during special occasions such as birthdays, weddings, anniversaries and customary occasions, but they can also be given spontaneously as a gesture of kindness or generosity.

An assessment to determine whether an individual has capacity to manage their property and financial affairs is required when an individual’s capacity is in doubt and they need to make decisions relating to their property and finances. For example, they may want to sell or purchase a property, need to manage an award of damages or need to manage their overall affairs.