Residential property

How we helped Mr & Mrs Henderson with Powers of Attorney and Guardianship

After moving house last year, Mr & Mrs Henderson took us up on our offer to sit down with them and review their existing Wills.

They had three children, Harry, Fraser and Amy all under the age of 15. The terms of their Wills, which were signed shortly after the birth of their youngest child were fairly typical: Mr Henderson’s whole estate was to pass to Mrs Henderson if she survived him, and vice versa. When they both had passed, everything was to be shared equally amongst their children. If any of the children were still young at this point, then they asked that their inheritance was to be held in trust until they reached the age of 21.

During our discussions, the Hendersons advised that Harry had suffered an unexpected and life-threatening illness when he was 9, which resulted in severe brain damage. He required help with almost all aspects of his life, and the medical prognosis was that this would always be the case. He wouldn’t ever have enough insight to make decisions about his own health and care arrangements, or to handle financial matters.

This hadn’t created any practical problems to date, as Mr & Mrs Henderson had simply been using their ‘parental authority’ to make all necessary arrangements for Harry. They were anxious, though, about what would happen later that year, when this authority ceased on Harry’s 16th birthday. They understood, correctly, that Harry would then become an adult in the eyes of the law, and that no one else would be automatically entitled to act on his behalf. Had there been any likelihood that Harry would have a sufficient level of understanding when he turned 16, he might have chosen to authorise his parents to act for him by putting in place a Power of Attorney.

Because we knew that Harry wouldn’t be able to understand and sign a Power of Attorney we advised Mr & Mrs Henderson that they could apply to the court for Guardianship which would give them ongoing powers to ensure that Harry’s best interests were looked after. Although these applications are often time-consuming, Harry’s 16th birthday was still several months away, meaning we were able to start the process early. We secured a Guardianship Order prior to Harry’s birthday, so Mr & Mrs Hendersons’ authority (as Guardians) to make decisions on his behalf came into effect the very same day that their previous authority (as his parents) ended.

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