Services for Mature Clients

WHAT IS A LASTING POWER OF ATTORNEY?

While it may be difficult to consider, there may come a time in our lives when we are no longer capable of making our own decisions. Nevertheless, it is possible to plan how our health, welfare and financial affairs will be controlled in advance of this event by making a Lasting Power of Attorney (LPA).

As a legal document, an LPA allows you (‘the donor’) to officially nominate someone to make decisions on your behalf when you are no longer in a position to do so. An LPA may be useful in a number of situations. For example, if physical ailments have reduced your ability to look after your own affairs, or if you are abroad for long periods and you find it difficult to manage your property and finances in this country.

Most commonly an LPA will be used when someone has an injury, condition or disorder that causes them to lack mental capacity. So if there does come a time when you lose mental capacity, your affairs will subsequently be managed by the person or people you have appointed to act as your attorney(s). This will give you and your loved ones the peace of mind that decisions are being made in your best interests and by those you trust.

Why Should I Make a Lasting Power of Attorney?

An LPA allows you to plan for the future, permitting you to legally record:-

• What decisions you would like to be made on your behalf (either property and affairs or personal welfare, or both);
• Whom you would like to make these decisions (ie. who you would like to act as an attorney);
• How you would like your attorney to make these decisions (for example, you may include specific instructions regarding medical treatment).

LPAs came into existence in October 2007 under the Mental Capacity Health Act, replacing Enduring Powers of Attorney (EPA). The new legislation is more comprehensive with many checks and safeguards in place, thereby ensuring your interests are protected at all times. If however you have made a valid EPA before October 2007, it is still effective and you may not need to replace it with an LPA if it still meets your needs.

Types of Lasting Power of Attorney

There are two types of Lasting Power of Attorney, each with different responsibilities:-

1. 1. Property and Affairs Lasting Power of Attorney This allows an attorney to make decisions regarding your property and your financial affairs. An attorney will be permitted to operate your bank accounts, pay your bills, collect your benefits and sell your property. Unless it states otherwise, a Property and Affairs LPA may be used as soon as it has been registered with the Office of the Public Guardian.
2. 2. Personal Welfare Lasting Power of Attorney This allows an attorney to make some or all decisions regarding your health and welfare. This may include matters such as medical treatment, residential care and accepting or refusing health care. If you wish, it can even extend to accepting or refusing life-sustaining treatment on your behalf. Additionally, your attorney can be given the power to decide upon your day-to-day care, such as your diet and where you should live. Unlike a Property and Affairs LPA, a Personal Welfare LPA may only come into force once it has been registered and the person making the LPA has lost mental capacity.

WHY EVERYONE SHOULD MAKE A WILL

Making a Will is extremely important, as it is the only way to control what will happen to your estate when you die. In this context, ‘estate’ means everything that you own, including savings, property, furniture, vehicles and other assets.

While making arrangements for after your death may not be pleasant to think about, it is absolutely crucial to guarantee your wishes are carried out. Often people say a Will is unnecessary, believing their estate will automatically pass to their spouse or civil partner when they die. But this may not be so. If there is no valid Will, it will be left to the law to dictate how your estate is divided. This could have devastating consequences, as certain family members whom you did not want to inherit your estate may become beneficiaries. Those you wished to provide for may lose out.

What Happens if You Don’t Make a Will?

If you die without having made a Will, then you are said to have died ‘intestate’. This means that despite any wishes you may have voiced in your lifetime, you do not have a legally-binding document setting out what should happen to your estate. Instead, the rules of intestacy will apply, meaning the law will determine who will become a beneficiary, and how much they will inherit.

The laws of intestacy are complex, as the way in which your estate is distributed will depend upon your personal circumstances. It is worth noting that if you are in a relationship, but you are not married or in a civil partnership, then your partner will not be entitled to anything. Their only option would be to try to persuade a Court to award a payment under the Inheritance (Provision for Family and Dependants) Act 1975, a law which can help those who were dependant upon the deceased.

Where Should You Start?

To ensure your loved ones are taken care of after you pass away, you need to make a Will that is legally binding. To do so, it is vital you seek the assistance of a legal expert. There are ‘DIY Wills’ on offer, and you may believe these to save you time and money. They often prove costly in the long-run, as many turn out to be poorly drafted or completely invalid. Similar problems can arise with Wills prepared by unqualified or poorly-qualified ‘Will-writers’. On the other hand, a solicitor will be able to use their professional expertise to ensure all your requirements are included and the will is legally signed and is valid.

What Can be Included in a Will?

When it comes to writing a Will, there is no such thing as ‘one size fits all’. Each individual will have different requests and requirements. Some of the most important factors to consider include:-

• Inheritance - One of the primary reasons for making a Will is to ensure your estate passes to the correct beneficiaries. You should therefore evaluate your estate, decide who you want to be named as beneficiaries, and what you would like each person to receive.
• Legal guardians - If you have any children under the age of 18, you should appoint legal guardians to take charge of their upbringing.
• Executors - An executor is the person responsible for administering your estate after you die. Up for four executors can be named in your Will, each of whom should be someone you can both trust and rely on.
• Funeral arrangements - If you would like to make specific arrangements for your funeral, then you can stipulate these wishes in your Will, for example if you would like to be buried or cremated. You can also apportion an amount of money to cover the cost.
• Gifts - You may want to make a donation to a certain charity or club close to your heart.

If you would like help drafting a Will, contact us at Davis Gregory today and speak to one of our solicitors. We promise to deliver a friendly but efficient service. Once completed, you will have the peace of mind that your wishes will be carried out after you’re gone. We also offer an ‘after-sales service’, by storing your Will for free if you wish.

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For an LPA to become official, it must first be registered with the Office of the Public Guardian. The necessary forms must be filled out, either by the donor or the attorney, and returned along with the registration fee. The Office of the Public Guardian will then carry out certain checks and, if there are no problems, the application should be processed within around 13 weeks.

To ensure your application is not hindered by any complications, it is best to seek legal advice before completing the forms. This is especially a good idea if there are complex financial matters to deal with, or if there are specific clauses you wish to include (such as restriction orders or demands regarding life-sustaining treatment). LPAs are powerful documents, so it is vital it is drafted correctly and according to your wishes.

If you would like to speak to a lawyer about a Lasting Power of Attorney, contact us at Davis Gregory today. Based in Cheltenham, we have a team of solicitors who are more than happy to offer professional legal advice to clients throughout England and Wales.

• Lasting powers of attorney, to deal with arrangements if you are incapacitated – Wills do not cover these.
• We specialise in supporting mature clients, particularly those who live alone or who are daunted by the paperwork that is needed to live independently, or who are worried about what will happen to them when they are no longer able to care for themselves.
• We do all we can to help you live independently for as long as possible, so that your worries are listened to and you have the best quality of life.
• We are experts in making sure that you receive the welfare benefits you are entitled to, and that your affairs are in good order.
• We are happy to visit you at home whenever necessary if you wish.

To discuss what we can offer you further, click here or
call Freephone 0800 328 4249
or email sg@davisg.co.uk.

To ask about making a Lasting Power of Attorney, click here or
call Freephone 0800 328 4249
or email mature@davisg.co.uk.

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