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Discretionary investment management and Lasting Powers of Attorney
Phoebe Alexander
Given the events of the past year, it is likely that we are going to see changes to inheritance tax and capital gains tax in the future. The Office of Tax Simplification and the All-Party Parliamentary Group have made a number of suggestions, which I will not go through at length here. However, the following may be of particular relevance to many:
In light of these proposed changes, here are a few estate planning steps that might be worth considering sooner rather than later:
CGT appears to be an easy target for reform. If you are thinking about giving away or selling assets standing at a significant gain, now may be a more favourable tax climate in which to do this.
Business Relief has been under scrutiny for some time. It can be argued that it has strayed from its original purpose of protecting vulnerable family businesses, given that it is available to many large, well-established companies, such as some of those listed on AIM.
We do not know if Business Relief will be around forever, or if it will remain in its current form. It may therefore be worth triggering the relief now through a gift of assets to a trust or other structure for the benefit of the family and future generations.
Gifting has always been a straightforward way of reducing a future IHT bill. Outright gifting keeps things simple and involves minimal cost and administration. Such gifts however provide no control or protection for the donor, which is something that has become increasingly important in these uncertain times.
Gifts to a trust or vehicle such as a Family Investment Company can however be very useful options for asset preservation and succession. The current relatively benign tax climate makes these options more affordable.
Asset protection has become more of a focus than ever before. A simple, “everything to the surviving spouse, then to the children” Will may still be appropriate for some. In most cases however, structures such as life interest or discretionary trusts, together with an accompanying letter of wishes, provide maximum flexibility and serve to protect assets for future generations.
Most of the options outlined above are not new. However, as we navigate through these difficult times and question what the future holds, now could be a good time to future-proof your position so far as possible.
For further information, you can watch a webinar by Stephanie Mooney and James Ward for LexisNexis on "Succession Planning" which was released on 8 December 2020.
(Subscription to LexisNexis required)
If you have any questions about the issues covered in this blog, please contact a member of our private client team.
Since writing the above, the government has announced plans to modernise and strengthen the Lasting Power of Attorney (“LPA”) process, by which a person can appoint attorneys to manage their affairs in the event that they lose capacity, following last year’s consultation on modernising the system.
In summary, the major reforms will be:
A Lasting Power of Attorney (“LPA”) is a legal document which allows you to choose who should help you make decisions or make decisions on your behalf when you lose mental capacity and are no longer able to do so yourself. The person making the LPA is called the ‘donor’ and the person or persons given authority under the LPA are called ‘attorneys’. There are two types of LPA: one for ‘Financial Decisions’, for example paying bills or dealing with properties; and one for ‘Health and Care Decisions’ which can cover decisions from what type of care you receive to whether life sustaining treatment is given or not.
The Government has for some time promised to introduce a register requiring overseas entities holding UK property to identify its beneficial owners, in its effort to increase transparency in UK property ownership and reduce the attraction of the UK’s property market to money launderers. Indeed, we last blogged about the potential overseas entities register in May 2019. With UK-based entities subject to strict information-sharing requirements since 2016 (in the form of the register of People with Significant Control or “PSC Register”), many have been calling for an equivalent overseas entities register to be implemented to provide a way of tracking overseas owners who ultimately own and control UK land.
Laura Harper was delighted to be invited to talk to the editor of ‘Wealthbriefing’ recently about the important topic of philanthropic giving by HNW individuals and families.
Apple officially released its ‘Digital Legacy’ feature on 13 December 2021. This permits individuals who have been nominated by the deceased to access the deceased’s accounts and data after their death. Diva Shah examines the impact of this new feature and its implications for Private Client practitioners in matters of estate planning where digital assets are involved.
The UK government introduced new legislation that will require those working in care homes to be double vaccinated against coronavirus. This has been implemented through the Health and Social Care Act 2008 (Regulated Activities) (Amendment) that came into effect on the 11th November 2021. This regulation is applied to England only.
While IHT escaped major changes in the Autumn Budget the Chancellor could be tempted to tweak the framework for IHT in future, writes James Ward. But what playbook would he use?
As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.
Our well regarded French contact* has warned us that a new law just passed in France is going to cause problems for Anglo / French succession planning. Under the laws of England and Wales, all individuals have testamentary freedom and can leave their estate to whomever they choose under the terms of their will.
Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
With the price of crypto assets generally making a good recovery from the Covid-19 related decline of 2019 contrasted with the very recent volatility following issues with the adoption of the cryptocurrency as legal tender in El Salvador, investors in cryptocurrencies might be considering realising some of their gains to try to help minimise any further instability.
In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.
The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021.
Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.
Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence.
There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.
After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.
The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.
In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"
Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Phoebe Alexander
Diva Shah
Diva Shah
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