A will is a legal document which expresses your wishes as to how your assets are to be distributed in the event of your death. In addition, it provides for the care and upbringing of any minor children you have. Also, it identifies which person or people are to manage the property until its final distribution.
A Lasting Power of Attorney, generally known by the acronym LPA, is also a legal document. It’s where a person (‘donor’) gives someone else (‘attorney’) authority to make certain decisions on his or her behalf. It continues to be in force even if the donor becomes mentally incapable of managing his or her own affairs.
Why You Need a Will Now
Although no single document will likely resolve every issue that arises after your death, a will is probably the first document you’ll need.
Failure to prepare a will typically passes decisions about your estate to the judiciary and could cause family disputes. While you can write your own will, you should have it witnessed to reduce the risk of family disputes and challenges to its authenticity.
To be completely sure everything is in order, I always advise having your will prepared by a solicitor. Law firms advise on dealing with the legal, tax, property and estate administration affairs on your behalf, which can be complex.
Different Types of Lasting Power of Attorney
An LPA is used to protect you while you’re still alive, and concerns either your property and finances or health and care. It’s used if you’re no longer able to or want to make your own decisions. Set up an LPA to ensure you’re covered in the future. Nothing will happen with it until it’s needed.
As they are legally binding and important documents, I recommend that you take professional advice from a qualified legal professional before committing to one.
LPA for Financial Decisions
An LPA for financial decisions can be used while you still have mental capacity, or you can state that you only want it to come into force if you lose capacity.
With an LPA for financial decisions, your attorney must keep accounts and ensure their money is kept separate from yours. You can request regular updates of income and expenditure. These details can be sent to your solicitor or a family member if you lose mental capacity.
You’re able to restrict the types of decision your attorney can make on your behalf or let them make all financial decisions for you. Either way, with the right advice, you can use an LPA as part of your tax planning.
If you’re concerned about inheritance tax, see my blog on the subject, Death and Taxes: Inheritance Tax Explained, from 2018.
LPA for Health and Care Decisions
An LPA for health and care decisions is different and can only be used once you’ve lost mental capacity.
As well as general instructions about your health and wellbeing, you can also give permission for your attorney to make decisions about life-saving treatment.
Don’t think that because you’re married or in a civil partnership your spouse gets these decision-making rights automatically. He or she won’t, without an LPA in place.
Although we generally prefer not to think about incapacitation and death, you can see that with the right preparation in advance, you’re able to protect your personal finances and loved ones.