Many of us will have enjoyed copious amounts of food and festive cheer over the last couple of weeks, as well as the annual outings of the Dickens’ classics, Scrooge and Oliver Twist. Both touch on the workhouse, and the lack of any real state provision for the abandoned, the poor, the infirm, and the elderly. This makes for a pretty dark background for these up tempo musicals. And whilst this is not the focus of the script, I wonder if we can say that we are doing enough in the 21st century to address the issue of social care for our elderly?
The name Jimmy McGovern will be familiar to many. He is the mastermind behind award-winning programmes, such as Cracker and Hillsborough, but why do I mention him here? I do so as Mr McGovern has been on our screens again recently with a new drama called, Care. If you haven’t watched it yet, I suggest doing so on the BBC iPlayer. It is extremely thought provoking, with a stellar cast of Alison Steadman and Sheridan Smith in the lead roles.
The drama itself tells the story of a single mother who is caring for her elderly mother after she has a stroke and develops dementia. The drama highlights issues that the family experience with the local health authorities and the lack of assistance that they are provided with. The drama is itself based on the real-life experiences of Gillian Juckles, who has co-written the drama with Mr McGovern.
Most of us like to think of our parents, and indeed ourselves, as infallible, and I applaud Mr McGovern in his calls for a national conversation to take place regarding our attitudes and our approach to how we deal with the provision of care as we get older, rather than the question being, as he would put it, ‘dodged’.
We are obviously far removed from the days of the workhouse, and I don’t pretend for one moment that we are not. However, we face new challenges, whereby due to better healthcare, we are all living longer than ever before. This then, in turn, presents new challenges.
Placing a relative in care is very often not planned for, as is so brilliantly highlighted in Care. The stresses and strains on a family can be immense. Mr McGovern describes these as ‘hoops’ needing to be ‘jumped through’ and for anyone who has been in this dilemma, the script is very relatable. The sister of Sheridan Smith at one point makes the heart wrenching statement that the ‘best thing a mother can do for her kids is die.’
Just over four years ago, on New Year’s Eve, my Nan had emergency surgery at the age of 82 for a burst stomach ulcer. Incredibly, after intensive care, and physiotherapy, she pulled through. My reason for including this narrative, is that within a day of her being declared ‘medically well’ we were being asked about care home placements.
My mother and I already had a Lasting Power of Attorney in place for my Nan’s Property and Financial Affairs and also for her Health and Welfare. One of the difficult conversations that my mother often had with my Nan was about care homes. A proud and independent woman, and a widow for many years, she would often say that she would not end up ‘in one of those places’. What no one really appreciates (until you reach this stage yourself) is how many factors are involved.
Hospitals need beds, care home visits need to be arranged, relatives visited, assessments undertaken, properties sold, fingers kept crossed for available care home spaces, full time work, families, and somewhere in this midst this process explained to your loved one at the very centre of it all.
Mr McGovern’s central argument is between what constitutes care and what constitutes treatment. Treatment means getting better, but care is ‘just care, looking after someone.’ He argues that the same can be said of palliative care, describing this policy of ‘we need the beds’ as ‘ruthless but essential’.
Do we, as a society, again hold the answer? Ideas have been muted before about part-time working, enabling families to fill the care ‘gap’ but is this really realistic for most employers and most families, for whom two wages coming into the household is today the norm, and necessary. The well-known scenes in Charlie and the Chocolate Factory where Charlie and his mother support four elderly grandparents on a washerwoman’s wage and a paper-boy round are simply not feasible. But is the ever-growing cost of our elderly sustainable for us? Families are increasingly small, and with concerns over immigration given recent topical debates, I think Mr McGovern is right to get us talking about this issue in an open and honest manner, else how will things improve?
Aside from costs whilst we are alive, what of those after we die? The Government has recently resurrected plans which were dropped ahead of the 2017 general election. These will see a huge rise in probate fees for larger estates, with a sliding scale based on the value of the estate, ranging from £250 to £6,000. These will replace the current flat rates of £215 for individuals and £155 for those applying through a solicitor, with estates valued at under £5,000 exempted.
There has, understandably, been a general outcry about the resurrected proposal, though the Government says it has listened closely to the concerns raised.
As originally proposed, the Government will increase the value threshold from £5,000 to £50,000, and a maximum fee of £6,000 for estates worth over £2 million. Those worth between £1.6m and £2m will pay £5,000 and those between £1m and £1.6m £4,000.The figure will fall to £2,500 for estates worth between £500,000 and £1m while those in the £50,000 to £300,000 price bracket will pay £250.We are told that this will lift 25,000 estates from paying any fees altogether, 80% of estates will pay £750 or less, and that the higher limit of £6,000 is a 70% reduction on the £20,000 cap previously proposed.
The changes will be enacted via secondary legislation and we are told that all monies raised from the new fees will be spent on running the courts and tribunal service, ‘ensuring that justice is done and protecting victims and vulnerable people’, and will amount to an estimated £145 million a year from 2019/20. It is claimed, by justice minister, Lucy Frazer, that the changes are ‘fair and progressive’ and that fees will ‘never be more than 0.5% of an estate’, and that they are ‘recoverable’ from the estate. This gives some credence to the general outcry that these new fees will amount to something of a ‘stealth tax’ with the Government acknowledging the ‘important service’ that the Probate Service offers to ‘those who are bereaved.’
Why a stealth tax? The Law Society, along with many others in this profession, have noted that the changes will avoid parliamentary scrutiny as they will be introduced through statutory instrument, with the President, Christina Blacklaws, highlighting that the Government could have increased funding through other measures, and that the increased fees amount to an ‘additional inheritance tax’.
Lakshmi Turner, chief executive at Solicitors for the Elderly, has noted that these fees are ‘unjustifiable’ given that the probate process will ‘not require additional work or resources no matter the size of the estate.’ These sentiments are echoed by Lord Marks of Henley on Thames who notes that the fee increase would be an ‘abuse of the fee-levying power, since the proposed increases substantially exceed the cost in making grants of probate’ and Lord Beecham who argues that the fees are ‘so far above the actual cost of the service (it) arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power’ and ‘represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’
Some in my profession have argued the fee rises are effectively a tax raid on high-value homes, since there is little difference in the amount of work involved in administering estates of different value. The Society of Trust and Estate Practitioners, for example, have noted that 85% of estates would have been liable for higher fees, based on 2014-5 figures. “The new charges bear no relation to the cost of probate, and are simply another form of taxation, sneaked in through the back door,” notes the chief executive George Hodgson. “The government has failed to explain why it is choosing to place this burden on bereaved families, many of whom will have spent months or years paying expensive care fees for their elderly relatives.”
There are many unanswered questions before these proposals are put into place in April, such as how the Executors are meant to pay the Probate fees, or how the money will be recovered from the estate, given that all assets are frozen until the Executors receive the grant of probate. The Ministry of Justice has said that guidance will be published before the measures are introduced, and we await these with interest…………
Therefore, as another New Year is seen in with the usual merriment, there could be challenging times ahead.
Our Wills and Probate team are able to assist you with both the preparation of Lasting Power of Attorney documents and Court of Protection documents, as well as assisting you with the estate administration process. Please contact us for further information.