It is always best to be prepared for what may happen in the future, to give you and your family and friends peace of mind. However without having all the information you may need, you may not be as ready as you might think.
People can sometimes get confused with the arrangements they have in place, with a common mix up being between Wills and Lasting Powers of Attorney. Clients may think that because they have one document or the other in place, that their affairs will always be dealt with and taken care of as they would like, no matter what, however this is not the case.
A Lasting Power of Attorney (in its previous form called an Enduring Power of Attorney) is a document that you (known as the donor) can put in place to appoint a person or persons to act on your behalf (known as the attorney or attorneys). The document usually relates to your property and financial affairs, although there is a separate Lasting Power of Attorney to deal with your health and personal welfare issues. The powers allow your attorney or attorneys to make decisions relating to the matters covered by the specific document on your behalf, in particular when you no longer have the mental capacity to make those decisions on your own. Those decisions however must be made in your best interests and, with the exception of small seasonal gifts or similar transactions, your assets are still yours and to be used for your benefit. The Lasting Power of Attorney, if not brought to an end beforehand, will end on your death.
A Will on the other hand, speaks from death, so your executors are the people you appoint to deal with your affairs and the beneficiaries are the people you have chosen to inherit either particular items, cash gifts, or receiving the whole of or a share of the residue of your estate. Your executors may well be the same people as you have appointed as your attorneys, but this does not have to be the case. Therefore on the date of your death, the attorneys should stop acting, and your executors should start. All the people you appoint, as either attorneys or executors, should be your choice, and must be people that you trust.
Both Lasting Powers of Attorney and Wills are important documents and are worth having in place, to ensure that your affairs, during your lifetime and after your death, can be dealt with properly and in the way that you want. Not having a Lasting Power of Attorney in place may mean that your family or another person may have to apply to the Court of Protection to be appointed as your deputy. They will then take over dealing with your affairs if you have lost mental capacity without putting alternative arrangements in place. Not having a Will means that your estate will need to be dealt with under "the Rules of Intestacy” which is the law set down by statute as to who is able to administer your affairs and who will inherit your estate. Depending on your family circumstances, this may be distant or estranged family members, or ultimately may be the Crown.
It is therefore vital that you are as best prepared as possible, to minimise the grief and stress to those around you and to ensure that your affairs are managed as you wish, not left to chance. Clough & Willis, can assist you in making Wills and Lasting Powers of Attorney.
Helen Webster is Head of our Private Client Team and offers specialist advice on Wills, Powers of Attorney and Court of Protection matters, Estate Administration (Probate and Intestacy) and Trusts.
