Why it’s important to make a Will AND an LPA at the same time

September 4, 2017

Most people aren’t surprised when they read that around 70% of the population don’t have a Will. Actually the figure is probably closer to 85% given that many think writing down their wishes and signing it is a Will, it isn’t! Wills are complex documents, they have to be in writing, although interestingly that doesn’t have to be on paper, but it can’t be in some electronic format like a cloud based storage facility. It 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. And then there are the Executor and Trustee appointments and the legal issues surrounding their specific roles, before we even get into the distribution of any assets that may or may not form part of the estate. Oh, and then there’s guardianship of any children that are under the age of 18. Hey, that’s pretty much a quick summary of all the most important things in your life, yet I’ll bet you a quid if you asked the next 10 people you spoke to if they had a Will, around 80% would say no!

 

Moving on to Lasting Powers of Attorneys (LPAs), and I’ve written several articles on the importance of LPAs, and Wills for that matter, and I make no apologies for writing another, they are important! Would it surprise you to know that only around 1% of the population actually has a valid LPA? Madness when you think about all the media attention surrounding them. I was reminded that Martin Lewis recently said that an LPA is just as important, if not more so, than a Will. He’s right.

 

That’s because whilst Wills deal with what happens when we die, there is at least a fall back if we die without one (intestate). The asset distribution may not be as you would have wished, but hey ho we all have the opportunity to make a Will, and it may not be all that important where your assets go as long as they go somewhere eh? And guardianship for your minor children isn’t such a big deal is it?  I mean we can all sleep well on the knowledge that social services will do a great job in deciding where our minor children ought to live if we die before they are 18. I just want to add in there that I am not passing judgement on social services and anybody that works for them. I have no doubt that in most cases they do a great job. Whilst you’re pondering that for a moment, just give a thought also to the inheritance tax mitigation opportunity that you’ll lose out on in not making one. But enough said on Wills.

 

LPAs on the other hand are there as a tool to help us deal with matters whilst we are still alive, but lose the mental capacity to make our own decisions. There are two, one for your finances, and the other for your heath and wellbeing. Lose capacity, and that doesn’t just mean dementia or any age related or other ailment that challenges cognitive ability, it could be though an accident or serious illness, like cancer, and who makes decisions for you? Compound that with surviving a long time, and now add the fact you can’t access your finances and have no ability to express how you wish to be cared for. You could be in a coma or simply unable to communicate. You get the picture. And remember capacity can be lost, and is in many cases, very very quickly.

 

So I asked who makes decisions for you when that happens? People often say, well my next of kin. 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 authorised, either in law, or through your LPA. Lose capacity without one in place and you can expect your loved ones to have a lengthy (many months) and very expensive (many many thousands of pounds) application to The Court of Protection to apply for Deputyship. Not to mention the ongoing costs with this route. In the meantime, a healthcare professional, or a social worker (who you don’t know and doesn’t know you) makes important decisions for you, based on what they think is in your best interests. Just what the doctor ordered, literally!

 

That said, many people still put off the decision to make an LPA, firstly because we ‘never think it will happen to us’, and secondly, somehow talking about and taking action relating to our own mortality and well-being seems to frighten us. The reality is that most clients I see feel a huge sense of relief once they have their Wills and LPAs in place, because in doing so they are looking after the most important people in their lives, the ones they love AND of course, themselves.

 

Lastly, let’s get down to brass tacks, an extra kicker is the fact that usually getting these documents done at the same time can save an awful lot of money. I for example offer my clients a significant reduction in fees if instructed to do a Will and LPAs at the same time. That’s because whilst I spend a little more time with my client doing all three together, it means I can capture all the information needed in a single meeting, thereby keeping costs down in the long run compared to doing them separately.

 

Don’t put these important documents off, and save yourself some of your hard earned cash by doing them together. And if you won’t listen to me, listen to Martin Lewis (I didn’t do his Will or LPA but if I did he’d have got the same money saving advice you just did)

 

This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.

 

Nino Cuffaro

Penn Chambers Solicitors
0207 183 1485

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