There is something to making your Will and Lasting Powers of Attorneys (LPAs) at the same time, and we would like to explain what that is.
Most people are not surprised when they read that around only 30% of the population have a Will. Actually, the figure is probably as low as 15% of people who have a valid Will given that many people think writing down their wishes on a piece of paper and signing it creates a valid Will - it does not.
Wills are complex documents, there are many rules that surround the creation of a Will and the interpretation of the words used in exercising your wishes.
The rules on signing the Will are very strict too:
The Will has to be signed by the testator (that's you, the person making the Will) and witnessed by 2 people.
Each party needs to see the other sign. Add into that if a beneficiary witnesses the Will he or she automatically disinherits themselves, so proceed with caution around the signing process.
Getting a Will prepared by a qualified Solicitor is therefore vital.
Moving on to Lasting Powers of Attorneys (LPAs), the statistics get worse - Would it surprise you to know that only around 1% of the population actually has a valid LPA?
Martin Lewis, the Money Saving Expert, is reputed to have stated that an LPA is just as important, if not more so than making a Will. We believe that he is right.
That is because whilst Wills allow our trusted family and friends (known as executors) to manage our property and assets when we pass away, an LPA allows our trusted family and friends (known as attorneys) to manage our property and assets whilst we are still alive, but lose the mental capacity to make our own decisions.
Losing mental capacity means being unable to make sensible good decisions. It does not just happen if you get dementia or any age-related or another ailment that challenges cognitive ability, it could be though an accident or serious illness, like cancer, where your decision-making processes are severely impaired. Remember, capacity can be lost very very quickly in degenerative cases but for example in a motor vehicle collision, you could be in a coma or simply unable to communicate instantaneously and potentially for a long time.
Most people assume that when you lose mental capacity that your next of kin can make decisions for you such as accessing bank accounts, paying mortgages and so on. The idea of ‘next of kin’ doesn’t exist in this scenario, and the only people who can make decisions on your behalf are those who are authorised, either in law or through your LPA.
Lose capacity without an LPA in place will mean that you can expect your loved ones to be required to make an application to The Court of Protection to apply for Deputyship, which costs many thousands of pounds and can take many months.
There are two types of LPA: one for your finances, and the other for your health and wellbeing.
If you lose mental capacity and do not have an LPAin place, during that time, as far as your finances are concerned, probably your mortgage will not be paid and so on. As far as your health is concerned, a healthcare professional or a social worker (who you don’t know and doesn’t know you) will make important decisions for you, based on what they think is in your best interests.
If you have an LPA, your appointed attorney(s) could make all those decisions for you.
That is why it is important to prepare a Will and LPA’s together. They are part of the same process of ensuring that your loved ones are cared for and provided for when you are unable to do that for them, whether you are alive and mentally incapacitated or have passed away.
Doing both a Will and LPA’s together will also ensure that YOUR wishes are respected too and can save time and money.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
Wills, Trusts & Probate team
020 7183 1485
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