Care homes in the UK accommodate people from across a full spectrum of society e.g. blended families and there will likely be a vast array of familial backgrounds in any given residence. One particular scenario we are seeing increasingly often is the emerging trend of residents who have blended families - where two or more families are brought together through marriage. This might be the residents themselves, who have married multiple times and as a result have various children, step-children, grandchildren and step-grandchildren. The term also applies to residents who have only ever married once themselves, but their children have undergone multiple marriages. Any scenario involving a blended family can complicate legal matters when it comes to wills, especially if a resident passes away without a will, or with an outdated will that does not reflect their current family situation. Invalid and contested wills can result in lengthy court procedures that may well leave unpaid bills, including vast sums owed to care homes. With this in mind, what should care home managers be aware of when it comes to wills involving blended families?
What if there is no will?
When a person dies without making a will, intestacy rules come into play that dictate how the estate will be distributed to remaining relatives. Where a person dies leaving a surviving spouse and children the law states that any surviving spouse inherits the first £250,000 of the deceased’s estate, all of their personal possessions and half of anything that is left. In the example of a resident who has recently remarried but who has children from a previous relationship and an estate worth less than £250,000, the intestacy rules would mean that the recent spouse would get everything and the children would receive nothing. It is also worth bearing in mind that the act of marriage revokes an existing will, so even if the resident in this case had previously made a will that passed all of their assets to their children, their recent remarriage would make this null and void.
Conversely, if a resident with no will had a long-term partner at their time of death but they were not married or in a civil partnership, their estate would pass to their own children in equal shares and the partner would not be entitled to anything. If a resident wants to ensure this does not happen then they need to create a will dictating their precise wishes.
Mental capacity is a common issue that care home managers come across. With regards to blended families, it can be especially pertinent as the implications of an invalid will can be further-reaching than those involving more conventional family structures. If a family member is concerned about a loved one’s mental capacity, they should in the first instance discuss this with the person in question and explore the possibility of them becoming an attorney by creating Lasting Powers of Attorney (LPAs). This would mean the family member can handle the resident’s finances and make decisions regarding their health and welfare, including areas such as their accommodation and care. Members of a blended family, such as step-children and step-grandchildren, have every right to become an attorney for the resident in question as a donor chooses their own attorneys to act for them and they do not have to be any kind of blood relation. Care homes might wish to discuss LPAs with residents, as they can be beneficial for all kinds of reasons, but ultimately the only person who can appoint an attorney via an LPA is the individual themself.
The above scenario ensures decisions can still be made in the event of future loss of mental capacity, but if somebody is looking to make a will and mental capacity is already a concern, assessing this is the job of the solicitor instructed to create the will. This is standard practise for solicitors, who must assess the person’s capacity to enter into the document and ensure they are satisfied that the instruction to create the will came from the individual and not any member of their family - whether that is a blended family or otherwise. If the solicitor has any doubts they then instruct a doctor to assist with the assessment of capacity. In cases where it is accepted that the resident lacks capacity to make a will, an application can be made on their behalf to the Court of Protection. This will create a statutory will that aims to ensure the resident’s estate is suitably distributed to between members of their blended family.
Clearly, there are many scenarios when residents and their loved ones require expert advice and guidance. When it comes to legal issues, care home managers should not try to provide this themselves as it can put them in a very difficult position. Instead, explaining the importance of updated and comprehensive wills and LPAs is a wise move and something which care homes should outline to residents at regular intervals. They can then arrange meetings with solicitors on a case-by-case basis.
We have seen matters where a dispute between family members exhausts the assets of an estate and leaves the estate insolvent. If the care home has outstanding fees at death then the amount due could be reduced or they may not receive payment at all. Even in a solvent estate, contested will disputes or estate disputes can go on for a number of months or years - so it could be a long time before the outstanding bills are paid, which could affect your cash flow. With that in mind, it makes sense for care home managers to ensure residents understand that problems can arise when they have blended families, and the importance of taking professional advice to try and prevent legal disputes.