20 July 2020

The times that we are currently living in have shown that life can change completely overnight and the future can look uncertain. The best way of dealing with this uncertainty is to ensure that all your personal planning is in place. There are two pillars to this planning – the first is executing a Lasting Power of Attorney so that your family can help you if you become ill or mentally incapacitated and the second is making your Will to ensure your estate passes to those who you wish to benefit on your death.

A Lasting Power of Attorney (LPA) allows you (the donor) to make a choice now, when you are fit and healthy, about who you would trust (the attorney) to make financial and personal decisions on your behalf if, in the future, you lose the mental capacity to make them for yourself.

There are two types of LPA. One type is a Property and Financial Affairs LPA which allows the attorney, to make decisions about your finances and property. A Property and Finance LPA is very flexible in that it can be used whilst someone is incapacitated, but as soon as they have returned to health the attorney will step aside – it is not a permanent arrangement unless it needs to be. The other type is a Health and Welfare LPA which gives the attorney authority to make decisions for you in respect of giving or refusing consent to healthcare, staying at home and receiving support, or moving into care. A Health and Welfare LPA can only be used when a person has lost capacity.

All LPAs have to be registered at the Office of the Public Guardian (OPG), before they can be used. If it appears that the attorney is abusing their position, then anyone can raise a concern with the OPG or Social Services, who will investigate.

If you have an accident or become ill, it may be too late to make an LPA and then an application will have to be made to court to appoint somebody, called a Deputy, to look after you affairs. This person may not be your choice, and appointing a deputy through the court it is also a longer and more expensive process. This can take at least three months and there are costs which include application fees, medical assessments, solicitor’s fees, deputy appointment, annual management fee and a security bond.

Your Will is used to appoint a person (your executor) who will deal with the administration of your estate after you have died. The Executor is responsible for valuing your estate, closing bank accounts, dealing with your house, paying any tax that is due as well any debts and making sure that the balance of the estate passes to your chosen beneficiaries. If there is no Will, the Law of Intestacy sets out who can inherit your estate and how much they can inherit. This may not be what you want. Making sure your Will is up to date will provide you with the comfort of knowing that your family is provided for how you want them to be even if times are uncertain.

Your solicitor will help you make a Lasting Power of Attorney and Will that gives effect to your wishes. You can then rest assured knowing that your family will benefit from your planning.

For more information, please contact Solicitor Naomi Dyer 01935 811307