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Wills and Power of Attorney in Gloucestershire and why Estate Planning matters
Estate planning entails the managing of an individual’s financial and private affairs both during their lifetime and after death.
This can encompass a number of aspects however for the purpose of this article we will concentrate on Wills and Powers of Attorney. Shiniade Jones, a paralegal in WSP Solicitors’ Private Client Department, highlights the importance of keeping a Will up to date and discusses factors that some may not consider.
Why you need a Lasting Power of Attorney (LPA) in your estate planning
A lasting power of attorney (LPA) is a legal document that lets you (the “donor”) appoint another person (the “attorney”) to make decisions on your behalf if you are unable to do so. There are two types of LPAs, Health and Welfare and Property and Financial Affairs. An LPA for Health and Welfare allows your attorney to make decisions regarding your day-to-day care and medical decisions including life-sustaining medical decisions. In this instance an Attorney can only make decisions when the donor does not have mental capacity to make them. An LPA for Property and Financial Affairs allows your Attorney to make decisions regarding your money and property. For this LPA, your Attorney can start making decisions whilst you still have mental capacity as long as the LPA affords them that right and you give your permission to do so.
The importance of Wills in estate planning
Wills are an essential part of estate planning and yet a large percentage of the population have not had one drawn up. If you do not draft a Will your assets and money will be allocated according to the intestacy rules, meaning that those persons that you may have wanted to benefit from your estate, may not. A Will, therefore, ensures that your estate is distributed according to your wishes, rather than by United Kingdom’s default law. A Will also nominates the Executors and Trustees. Executors are responsible for managing the deceased estates, settling debtors and distributing the assets according to the terms of the Will. Trustees, on the other hand manage specific Trusts created in the Will.
Understanding Trusts and when to seek expert legal advice
A Trust is a legal arrangement where an individual (the Settlor) transfers assets to another individual (the Trustee) to manage for the benefit of a third party (the beneficiary). This area of estate planning is vast and often difficult to navigate without the assistance of a Solicitor. This is beyond the ambit of this article, therefore should you require any advice regarding Trusts, it would be advisable to speak to one of our Solicitors who have the expert knowledge to assist you.
Why it’s important your family know your estate planning wishes
It is imperative that your family know where these legal documents are for when they are in need of use. It is also advisable to draw up a list of all your assets and liabilities and the details pertaining to them as this will greatly assist your Executors in establishing what your estate consists of. Should your Executors be in any doubt as to the assets and liabilities within your estate, they may need to carry out asset searches or advertise for creditors which will be an expense of the estate.
Making sure your will and lasting power of attorney work together
As advised, an LPA grants your attorney the power to manage your affairs during your lifetime, A Will dictates how your assets will be distributed on your death. They are distinct legal documents; however, both are important to ensure that your affairs are managed correctly and in accordance with your wishes both during your lifetime and on death. In providing for your affairs to be properly managed when you are unable to do so, you are protecting yourself and ensuring that your loved ones are looked after when you are gone.
Why enduring powers of attorney are no longer enough
LPAs replaced Enduring Powers of Attorney (EPA) in 2007. It is important to note that an EPA only covers your property and financial Affairs. LPAs offer better flexibility and a broader scope, allowing for attorneys to make decisions about both health and welfare and property and finance. As LPAs for property and finance can be used as soon as they are registered, your attorneys are able to assist you with day-to-day tasks relating to your finance and property. This is especially helpful if you are no longer mobile.
The benefits of registering an LPA
LPAs also provide a safeguard as they include a certificate provider to confirm capacity and understanding. They are also required to be registered with the Office of the Public Guardian before they can be used and consequently an official record of them is available from the date of registration.
Review your lasting power of attorney and Wills regularly
It is advisable to consider any EPA or LPA that you may have in place to ensure that the attorneys you have appointed are still able to take up the role and if you in fact still would like them to do so. Should you only have an EPA, you may want to consider drawing up an LPA for Health and Welfare to ensure your healthcare wishes are respected when you have lost capacity. Appointed attorneys’ actions are governed by the Mental Capacity Act 2005, which ensures that they act responsibly and in your best wishes.
It is also important to review your Will to ensure that your wishes are still correctly reflected. Furthermore, should your circumstances change in any way you may need to update your Will. In the event of a marriage, any Will that you have in place will automatically be revoked (unless the Will was made in contemplation of marriage). Should you get divorced, your Will does not automatically become invalid, however any reference to your ex-spouse will generally be voided.
Should you lose capacity you will no longer be in a position to draw up a Lasting Power of Attorney. For some-one else to manage your affairs at this point, an application to the Court of Protection for a deputyship order will be required which can be a long, onerous and costly procedure. You will also be unable to draw up a Will and will therefore die intestate or require an application to court to draw up a Statutory Will, which again will be very costly and onerous.
It is imperative that all aspects for your estate planning are up to date and especially your Will and Powers of Attorney, to ensure that those you trust can act and speak on your behalf and for your benefit when you are unable to do so.
Wills and Lasting Powers of Attorney are key to protecting your wishes. With offices in Gloucester and Stroud, we are ready to help. Call us on 01453 847200 or use the enquiry form on this page to speak to our expert team.
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