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Joshua, Lawyer
Category: Law
Satisfied Customers: 29193
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I signed to be part of a discretionary trust for my parents

Customer Question

Hi there I signed to be part of a discretionary trust for my parents around 8 years ago and now they have made us the power of eternity? What’s the difference and which one has more power?
JA: Where are you? It matters because laws vary by location.
Customer: nottinghamshire, England
JA: What steps have you taken so far?
Customer: nothing just signed
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: no
Submitted: 10 days ago.
Category: Law
Expert:  Joshua replied 10 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

May I ask if you are familiar with what property has been added to the discretionary trust please? for example it could be money, or other assets such as a house?

Customer: replied 10 days ago.
Assets as far as I know
Customer: replied 10 days ago.
It’s just before for the trust it was myself and one sister and now for the power of eternity it’s me and 2 sisters only leaving the one sister out.
Expert:  Joshua replied 10 days ago.
  1. May I clarify the type of assets that have been placed in trust please? e.g. a house, money, shares?
  2. approximately what sort of percentage would you guesstimate the amount placed in trust represents as an overall percentage of your parents estate? I appreciate the answer to this may be little more than educated guesswork on your part
Customer: replied 10 days ago.
It was the house in trust so it wouldn’t need to be sold if they are put in care. 100%
Expert:  Joshua replied 10 days ago.

thank you. The matter of a discretionary trust and power of attorney are entirely different and in many respects unrelated legal concepts though in practice there may be a degree of crossover as regards ***** *****

A trust which would include a discretionary trust by definition, is a means of placing property under the control of one or more trustees to hold the property either on behalf of themselves or others or a combination of the two for the purposes set out in the trust. There can be many reasons to establish a trust including a desire to reduce risk in relation to care fees, though this should certainly not be a stated aim of the trust or be significantly noted in any documentation relating to the trust else it may give the local authority a means to claim deprivation which would potentially entirely undermine the purpose of the trust. If the local authority can show that a principal or sole aim of the trust was to avoid care fees, they can challenge the entire trust and seek to set it aside. There are also some tax consequences of placing a property into trust, particularly in discretionary trust which I hope were discussed with your parents - in particular, the loss of a capital gains tax exemption, depending upon the value of the property, the need to pay a 10 yearly inheritance tax charge on the value of the property and that if they continue to live in the property, that it will remain part of their estate for inheritance tax purposes unless they pay a market rent to the trust for the right to live there.

By contrast, being appointed as an attorney does not provide any proprietary rights in respect to your parents property. Rather, an attorney's role is that of a support role to support your parents with decisions in relation to their property such as money and investments and the like ( in the case of a financial power of attorney) and decisions in relation to their health and welfare (in the case of a health and welfare power of attorney). An attorney does not have the right to override or overrule a donor even if they disagree with their decisions. subject to this, an attorney will broadly speaking have most of the same rights that the donor has in relation to their property and affairs and therefore can undertake some or indeed all of the tasks that the donor would usually carry out day-to-day to the extent the donor so wishes providing the power of attorney has been registered first with the office of the public Guardian

Customer: replied 10 days ago.
Ok thank you, ***** ***** was I have 3 sisters but 1 has fell out with everyone bar me. And I was happy being 50% on eternity so I could claim half of the property so we split everything equal between us 4. But when they added another sis to the power of finance I was a bit worried
Expert:  Joshua replied 10 days ago.

power of attorney does not give you a right to claim anything and a power of attorney ceases on the death of the donor. In order to have a right to anything from the trust or your parents estate, you would need to be named as a beneficiary in the trust deed or your parents wills respectively

Expert:  Joshua replied 10 days ago.

I hope the above answers all your questions. If there is anything else I can help with please reply back to me otherwise thank you very much for visiting JustAnswer and I hope we will see you again in the future.