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New Year, is it time to think about your will?

Posted by:

Wendy John

Image of New Year, is it time to think about your will?
by

Wendy John ,

Partner

Have you made a New Year’s resolution to write or update your Will? Maybe you have decided to consider preparing a Power of Attorney and don’t know where to start?

 

Considering these matters as your New Year’s resolutions for 2021 is beneficial for ensuring your loved ones are adequately provided for on your death, and giving you control now over how decisions could be made on your behalf in the future.

 

We caught up with Wendy John (virtually of course), Partner and Head of the Wills, Probate and Trusts team at Archers Law, and asked her some quick-fire questions to help you understand Wills and Power of Attorney.

 

Q: When should I consider writing a will?

 

A: Now! The law might not automatically deal with your estate in the way that you would like it to. I have a number of ongoing cases where the family has sadly been deeply disappointed by the automatic result under the intestacy rules.

 

If you do not already have a will in place, then prioritise putting one in place. If you already have a will, I suggest thinking about whether your circumstances have changed since it was written and whether it still reflects your wishes.

 

Q: How will appointing a solicitor to draw up my will help, can I do it myself?

 

A: Wills are legal documents and are governed by legislation. Appointing a solicitor to draw this up for you will ensure that this legislation is complied with and ensure your will is valid. We are also able to provide additional advice, tailored to your circumstances, to offer suggestions you may not have otherwise considered. Although it is possible to make wills at home, it is not something we would recommend. They can contain errors which affect the distribution of your estate, or may be incorrectly prepared and invalid, which would not discovered until after your death and could cause more problems for your family during an already difficult time. As a team, we have dealt with a number of poorly drafted “homemade” wills. Sadly, the costs of dealing with legal errors in wills often significantly outweighs the cost which would have been incurred having a professionally drafted will prepared in the first place.

 

Q: What is the process of making a will and is it complicated?

 

A: We make sure the process is very straightforward for our clients.

 

We would have an initial meeting with you to discuss your circumstances and take instructions. Then we would send you a draft will to review, with a covering letter explaining each clause within the document. Once you have approved the draft, we would assist you with getting the document signed and witnessed, after which it will be valid.

 

Q: Can I still make a will during the Coronavirus pandemic.

 

A: Yes. We are still able to assist you during the pandemic. Ordinarily, we would meet with you face to face to take instructions. However, in light of the current COVID-19 restrictions, we may need to take your instructions by way of a video call or telephone appointment.

 

In order to deal with getting the will signed and witnessed, we can, for example,

• Provide you with detailed instructions on the legal requirements and procedure to deal with this at home, depending on who is available to you to act as your witnesses, whilst complying with the current COVID-19 restrictions.

• Meet with you, socially distanced, at our offices.

• Deal with this via a video call, due to a recent change in legislation brought about due to COVID-19.

 

Q: Can I address the care of a pet in my Will?

 

A: Yes, you can decide who your pet should go to when you die, and, if you wish, leave that person a sum of money to cover the costs of looking after your pet.

 

Q: What is a Lasting Power of Attorney (LPA) and who can make one?

 

A: A Lasting Power of Attorney is a legal document that you can put in place to appoint people (called attorneys) to make financial or welfare decisions on your behalf. Anyone over the age of 18 who understands and can make their own decisions (has mental capacity) can make one.

 

Q: What is the difference between an LPA for Health and Welfare and an LPA for Financial and property decision making?

 

A: The two main differences are in the types of decisions that can be made, and when decisions can be made. A property and financial affairs LPA deals with any decisions involving a person’s finances, such as paying bills, or buying or selling property on their behalf. A health and welfare LPA deals with decisions such as whether someone will move into residential care, have a particular operation, and can even extend to smaller decisions like what someone will eat or drink, or what they will wear. A property and financial affairs LPA can be used immediately, once it is registered, with the consent of the person who made it. However, a health and welfare LPA can only be used by the attorneys once the person who made it is unable to make that decision for themselves.

 

Q: Will I lose control of my finances if I register a lasting power of attorney?

 

A: No. As long as you have mental capacity, then you are still in control of your finances and your attorneys should only act with your consent.

 

Q: Is it possible to register my LPA for property and financial affairs but prevent my attorney from acting until I lack capacity?

 

A: Your attorneys should not act under your LPA while you have capacity without your consent. When making your LPA, you can choose to only allow your attorneys to act once you lack capacity. However, this can limit how useful the document is.

 

Q: If I lose capacity, can my partner just manage my affairs?

 

A: Your partner (even if you are married) does not have any automatic legal right to manage your affairs. If you lose capacity and an LPA is not put in place, then your partner may need to make a Court application to be able to deal with your affairs for you.

 

Q: Has the pandemic had any impact on registering LPA’s?

 

A:  The Office of the Public Guardian, the government body who deal with registering LPA’s, are continuing to process and register the documents. However there is a slight delay, due both to the impact of the pandemic and staffing levels, and they are currently taking around 60 working days to process instead of 40.

 

Our Wills, Probate and Trusts team would be more than happy to answer any questions you have or help with make your will or prepare a LPA.