By Maxine Heppenstall
Taking Care of Yourself
In these difficult times it is more important than ever to take care of yourself and your family.
Many people are rushing to make Wills at present, but the importance of Lasting Powers of Attorney should not be overlooked, and the documents should (ideally) be prepared together as part of your lifetime planning. Wills and Lasting Powers of Attorney can only be executed when the person making them has the requisite mental capacity to do so. As mental incapacity can strike at any time through accident or illness or general deterioration, it is important to get your affairs in order whilst you are fit and well.
Making a Will allows you to say who inherits your estate after death. The Will does not take effect until death and therefore does not dictate what you can do with your estate in your lifetime – it is yours to do with as you please whilst you are alive. If you spend all you have – so be it! The Will simply takes care of what is left of your estate on death and accordingly should be drafted to protect and provide for those who are left behind. A Will should be reviewed on a regular basis, at least every 3 to 5 years, to ensure that it still meets with your wishes. Family circumstances can change quickly, and your Will should adapt accordingly – if it is very specific in its content then it will require a regular review. If it is more general in content, it may extend that review period.
Making a Will at any time, whether you are 18 years old or 80 years old gives you the opportunity to choose who will deal with your estate after death, who will care for any children under the age of 18 years at your death, who will care for any pets you have at your death, and making a Will allows you to make specific gifts of items or sums of money to particular people – whether they be family members, friends or charities. Those who are parents should look to protect their children and those who are grandparents should look to distribute their assets as they wish.
Without a Will, the law dictates who will deal with your estate after death and more importantly who will inherit your estate after death – don’t let that happen. This is a particularly important point for those who cohabit with their partner and do not marry or enter into a civil partnership. Those who choose to cohabit offer no protection for their partner without making a Will, unless they hold all their assets in joint names with their partner (in which case the assets pass by survivorship), which is not always the case.
Lasting Powers of Attorney
Making a Lasting Power of Attorney allows you to say who deals with your affairs in your lifetime. There are two types of Lasting Power of Attorney – one that relates to your property and financial affairs, and the other that relates to your health and welfare. The two Lasting Powers of Attorney complement each other and enable you to say who should look after your affairs in the event that you are unable to. A Lasting Power of Attorney relating to your property and financial affairs covers everything from dealing with your income, capital and expenditure, to selling your property for you. Appointing someone you trust is vital as it is a very important role for someone to take on, and it should not be taken on lightly. A Lasting Power of Attorney relating to your health and welfare covers everything from your Attorney being involved in your daily routine and respecting your wishes for day to day living, to making life sustaining decisions. The major difference between the two documents is that a Lasting Power of Attorney relating to your property and financial affairs can be used whilst you still have capacity – perhaps for convenience. However, a Lasting Power of Attorney relating to your health and welfare can only be used when you do not have the capacity to make a decision yourself relating to those matters.
Without Lasting Powers of Attorney in place, your legal next of kin have to apply to the Court of Protection in London for a Court order to become a ‘Deputy’ to enable them to deal with your affairs. This can prove to be a lengthy and expensive process at a time when time may be of the essence, and family tensions run high – don’t let that happen. The process of applying to the Court involves an application form being completed, together with a schedule of your income and capital and an assessment of capacity carried out by a medical professional. There is an application fee payable to the Court. Your proposed ‘Deputy’ will also need to complete a Declaration and in due course will need to take out an insurance bond to protect your assets. The Deputy will need to prepare an annual report of your income, capital and expenditure. Again, it can be an onerous task, one that can be avoided by making a Lasting Power of Attorney – you are able to choose who you wish to be your Attorney, rather than the law dictating who the next of kin is and therefore who is entitled to apply to Court to be appointed as your Deputy.
So, don’t delay – take care of yourself today!
Mrs Maxine Heppenstall
Private Client Solicitor & Director
Walker Foster Ltd, Skipton