According to recent research two thirds of adults in the UK do not have a Will. This can lead to untold upset and uncertainty for the family left behind. Without a valid Will, the rules of intestacy will govern who can manage and benefit from your estate. Apart from making sure that your hard earned assets pass in accordance with your wishes, there are other reasons to take advice and make a Will, which can be summarised by asking the following questions:
• Would you like to ensure that your spouse or partner can continue to live in the family home?
• Who would look after your children if something happened to you and how will your children be provided for?
• If you own properties subject to a mortgage how will the mortgage be repaid, would it be possible to settle any inheritance tax due on your estate without selling up?
• Do you own property overseas?
• Do you own your own business, have a share in a partnership or own private company shares – what do you envisage happening to your business after your death?
• Have you been married more than once and would you like your current partner to be secure while at the same time ensuring that children from a previous marriage are protected?
Even if you have a Will it is important to review it from time to time as changing circumstances can have consequences. For example, perhaps you have recently received a large inheritance, divorced or made a large gift to one of your children. You may have bought a second home or invested with others in a shared property. Any of these scenarios would require a review of your Will to ensure it remains relevant.
A Will deals with what will happen when you die, but what will happen in your old age or if you were to have an accident, stroke or develop an illness that left you without the mental ability to make decisions for yourself? Who will pay your bills and manage your finances so that you can pay for the care you need?
If you hold assets jointly, then perhaps your spouse or partner could manage your affairs but they may not be able to. What about ISAs and investments that you hold in your sole name? Financial institutions will be meticulous in ensuring that anyone giving instructions on your behalf has the proper authority to do so and quite rightly in our opinion. This is where a Lasting Power of Attorney (LPA) for Financial Decisions comes into play.
An ordinary Power of Attorney is a document by which one person (‘the donor’) appoints another person or people to act for him for a specified purpose or period of time. Once it is properly set up, a Lasting Power of Attorney will be valid for use until such time as the donor cancels it or dies. When and if the donor can no longer make decisions, or needs help to do so, his attorney can step into his shoes and act for him.
According to recent research two thirds of adults in the UK do not have a Will.
An LPA for Health and Care Decisions allows a donor to appoint an attorney to make decisions about his care should the donor be unable to do so. Decisions may include where the donor should live and the treatment he or she should receive. If you have not appointed an attorney, doctors and social workers will make these decisions for you or a family member will have to apply through the courts to be appointed as your deputy.
An attorney appointed under an LPA is not given a ‘blank cheque’ but acts in accordance with the principles of the Mental Capacity Act 2005. When the donor has lost mental capacity, his attorney must continue to attempt to consult with him, act in his best interests and always in a way that is least restrictive of the donor’s freedom.
You may already have an Enduring Power of Attorney in place, these documents preceded Lasting Powers of Attorney and, although they can still be used, the process of making sure that they are valid for use when needed is more complicated. EPAs do not cover healthcare decisions.
Wills and LPAs should be discussed with a professional who can help you to think about your affairs with clarity and care. If done properly, the process can help you structure your affairs and give you some peace of mind. But a final word of warning: when you look for a legal advisor make sure you understand how experienced the person you will see is and who you can speak to if you have questions or want to review matters further down the line.
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JM Finn & Co is not able to give individual advice of this nature. Clients who wish to explore the points that this article refers to should seek advice from a specialist in relation to their own personal circumstances.