By making a Will, you are making provision for the winding up of your affairs after death. This not only has advantages for those who will find themselves administering your estate, but also gives you peace of mind, knowing that you have selected as executors the individuals best suited for the role and have given them the necessary instructions as well as ensuring that you are gifting your estate to the people you want to inherent. This is not necessarily the case if you die without a Will as the intestacy rules will apply, and your estate may not be gifted to those you wanted to received it.
We would also suggest that you put Lasting Powers of Attorney in place. Should you become mentally incapacitated and incapable of looking after your own financial or health affairs, then LPAs will ensure that your affairs will be looked after for you by people you have chosen to do this. You cannot put LPAs in place once you lose capacity, and without LPAs then your family may have little power to legally look after your affairs for you and you may be subject to social services intervention instead.
These include:
Other possible benefits (depending on individual circumstances):
Some thought needs to be given a number of issues that will come up during discussions about why you should make your Will and why you should put particular provisions in it.
Whereas a Will makes provision for the winding up of your affairs after death, there are also opportunities available to make provision in advance for the possibility of you becoming incapable of managing your own financial and welfare affairs during your lifetime. This becomes increasingly important as the risk of supervening mental incapacity grows through longevity, illness or accident.
An ordinary power of attorney is not an effective provision because it is automatically revoked by mental incapacity, just at the time when it is most needed. The Court of Protection has power to appoint people to manage your affairs (by appointing a Deputy), but the procedure can be costly and time-consuming. More importantly, you will have lost the right to choose who will have the responsibility for looking after your affairs at a time when it is vital that they are dealt with efficiently and sympathetically.
Until 1 October 2007, it was possible to appoint someone to safeguard your interests and to act on your behalf in respect of your financial affairs by an Enduring Power of Attorney (EPA), which remains valid even after the individual granting the power (the donor) becomes mentally incapable. A simple procedure enables the attorney to register the EPA with the court and then to proceed as before with little further court involvement.
However, an EPA enabled an attorney to deal only with financial affairs. In addition, it was felt that the relatively simple procedures could result in the system being abused. Therefore, a more complex and robust system was introduced to enable attorneys to be appointed not only to look after a person’s financial affairs, but also to make decisions on their behalf relating to health and welfare issues. These types of document are known as Lasting Powers of Attorney (LPAs).
Lasting Powers of Attorney were created by the Mental Capacity Act 2005 (MCA 2005) which provides a statutory framework to deal with situations where adults lack capacity to make decisions for themselves or who have capacity but want to make preparations for a time when they may lack capacity in the future. It will be necessary to make separate Lasting Powers of Attorney, one dealing with ‘property and financial affairs’ and the other to cover ‘health and welfare’ decisions.
These are designed for you to appoint attorneys to make a range of decisions including the buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefits on your behalf. These can be used at your direction while mentally capable and also by the attorneys if you lack capacity to make these decisions.
Attorneys appointed under this document can make decisions relating to your living accommodation and care, consenting to or refusing medical treatment on your behalf, and on day-to-day matters such as diet and dress. They can also specify your end of life wishes and under what circumstances you wish to be resuscitated or whether you wish only to receive palliative care. This can only be used, however, if you have lost the capacity to make decisions for yourself.
Although there are two separate prescribed forms, both contain certain common provisions including statements to be completed by you setting out your details, the attorneys to be appointed and how they are to act, and details of any persons to be notified on the application for registration.
The attorneys must state that they understand their duties and obligations. In addition, the legislation has introduced a person known as ‘the certificate provider’, either someone who knows you well or a professional person. The certificate provider must sign the form to confirm that they have discussed the contents of the LPA(s) with you on your own (if possible) and that they can state that you understand the purpose and scope of the LPA, no undue pressure or fraud is involved in the decision to make an LPA and there are no other factors preventing the creation of the LPA.
Both types of LPA must be registered with the Office of the Public Guardian (OPG) before they can be used by your attorneys and both can be registered while you still have mental capacity (unless it specifies to the contrary). Registration can be by you or your attorney. The OPG do charge a small fee for the registration process.
We have plenty of information regarding Wills, so please get in touch to learn more.
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