Is a Power of Attorney a necessity?
I was recently asked whether you had to take out a Power of Attorney if you were making a will. My immediate and simple answer to this is a big NO..! However, I went on to explain a Power of Attorney and a will are a bit like a pair of matching handbag and shoes. You don’t have to buy them both but if you do they really complement each other.
So, what are these things we are talking about? Well, most people have heard of a will. “A will is a document whereby a person legally and intentionally directs the disposition of his or her property, to become effective only following the death of the person.” In other words, it’s an expression of your wish as to how you would like your affairs to be distributed upon your death.
Wills and the law
Wills became recognised in law following the Wills Act 1837. Yes, this legislation is over 180 years old and has not been changed. The same stringent conditions apply to the making of a valid will. It must be signed by you before two independent Witnesses who both must be present at the same time and who both witness you signing your will who must then sign and print their name address and occupation. Your will must also be dated. There are other provisions which apply to those who are visually impaired or who are unable to sign their will themselves.
If you haven’t made a will…
Shocking statistics reveal that two-thirds of UK adults have not made a will. So what happens then? Your estate will fall into the laws of intestacy and be distributed in accordance with the Administration of Estates Act 1925 (yes, another law rapidly approaching its centenary anniversary!) This means your estate may fall into the hands of someone you really don’t want, leaving your loved ones with only your memories.
For those who have made a will
OK. So let’s say you make a will. What does a Power of Attorney do? Well, a Power of Attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you are no longer able to or if you no longer want to make your own decisions. There are two forms of Power of Attorney one which provides your appointed Attorney with the ability to make decisions over your property. The other is in relation to your health. You may be advised to take out both or there may be a particular set of circumstances which causes advice to limit it to one.
Better to be prepared
One thing that is guaranteed in life is death. Some may say. “I don’t really care what happens to my estate when I die, I won’t be here to see it.” However, 1 in 5 women and 1 in 6 men being susceptible to strokes. Plus, an average of 435 people per day have a heart attack – and all these are surviving. What if you were unable to manage your day to day finances, pay your bills, arrange your home insurance, or unable to make any decisions about your medical treatment? Wouldn’t you want the security of knowing someone you really trust has already been appointed to manage all of this for you? You can restrict the types of decisions your Attorney can make, or let them make all decisions on your behalf.
If I make a Lasting Power of Attorney, does this take away my ability to make decisions myself?
Absolutely not. In fact, a LPA for health and care decisions can only be used once you have lost your mental capacity. In relation to a Financial LPA, whilst the document will enable your Attorney to act on your behalf, it does not in any way limit or inhibit your authority. You can revoke a LPA at any time.
An LPA is a bit like a Critical Illness policy. It’s there to ensure someone is there to look after you and/or your affairs in the event of unforeseen circumstances impacting upon your ability to make those decisions for yourself. However, unlike an insurance policy, there’s no ongoing premium. You just pay for the document to be prepared for you. Once complete, there are no ongoing charges.
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