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Wills and Lasting Powers of Attorney Explained

5th February 2018

You will probably have heard of a Will, even if you aren’t entirely certain of what it is and how it works. You may be less familiar with a Lasting Power of Attorney (LPA). This legal document serves a completely different purpose to that of a Will, but it’s just as important.

We explain what these documents do, the differences between them and why it’s so important to have both in place to secure your and your family’s future.

Call Co-op Legal Services for initial advice on 03306069591 or contact us online and we will help you.

Why People Make Wills

The main purpose of making a Will is to state who you would like to inherit your money, property and possessions after you die. As we are all going to die at some point, it’s really important for every adult to make a Will.

You can divide everything you own outright to one person or to several people in portions, and leave different amounts to different people or you can specify items that you would like certain people to have. You can also choose to leave part or all of your Estate to a charity or organisation if you want to.

A Will also provides you with an opportunity to make arrangements for the care of any children that you have. If you have children under 18 you can state in your Will who you would like to take responsibility for your children and where you would like them to live if you die and there is no one else at that point who has legal responsibility for them.

What Happens if You Don’t Have a Will?

If you die without a valid Will in place, then you will have absolutely no control over what happens to your money, assets or property. Instead, the government will decide who gets what under what’s known as the Rules of Intestacy. These rules set out which of your living relatives will be entitled to inherit from you.

The Intestacy rules are strict, and don’t make allowances for some modern family arrangements. For example, if you live with your partner but you’re not married then your partner would not be recognised under these rules. The same applies for any step children you have.

If you die, leaving behind children who are under 18 who have no other legal guardian, then the authorities could ultimately decide who the children will go and live with. No parent would choose this uncertainty for their child, but tragically if your wishes haven’t been recorded then this is a very real risk. The easiest way to ensure that your child would be cared for by the right people, if you were no longer around, is to appoint a legal guardian in your Will.

Why People Get LPAs

A Lasting Power of Attorney (LPA) is a legal document that grants another person authority to make decisions on your behalf if you’re no longer able to make these decisions yourself. There are two types of LPA that you can put in place. One covers your health and welfare and the other covers any money, property or other assets that you own in England and Wales.

A Health and Welfare LPA allows you to name people who you would like to make decisions about your healthcare, medical treatments and living arrangements if you are no longer able to voice your own opinion.

For example, if you suffer a stroke or an illness which means that you can no longer communicate, someone else will need to make decisions for you regarding your treatment and other aspects of your day-to-day life. Having a Health and Welfare LPA in place allows you to appoint someone you trust to make these decisions on your behalf and to inform them of your preferences, so they know exactly what to do.

A Property and Financial Affairs LPA allows you to name people who can deal with any money or property that you own in England or Wales, if it’s no longer practical or possible for you to do this yourself.

You can state the circumstances in which you would want the LPA to come into effect. You may decide that if you develop mobility issues and can’t easily get out and about, then it would be best for someone else to take care of your money on your behalf. Or you might decide that you would want to keep full control of your finances unless you no longer have mental capacity to. It’s entirely up to you.

What Happens if You Don’t Have an LPA?

Many people think that if they could no longer look after their own affairs, someone would automatically be able to step in and take control. But this isn’t the case, and sadly too many families don’t realise this until it’s too late.

This means that if you’re unable to access your bank account, for example, or buy yourself groceries, then no one else will be able to gain access to your finances to do this on your behalf. No one will be able to contact utility companies to arrange paying your bills and no one will be able to organise rent or mortgage payments for you. Family members can find themselves in a desperate situation, unable to provide for you.

If you need medical treatment and a decision needs to be made about what treatment to undertake, no one will be able to make an informed decision for you. This will be left to chance as those around you try to guess what you would have wanted.

If you don’t have an LPA in place and you become unable to manage your own affairs, the only option your loved ones would have would be to apply to the Court for a Deputyship Order. This can be expensive and can take several months to do. Even then, it’s up to the Court to approve the application, which could also be challenged by other family members. In the meantime they would have to muddle through, possibly needing to cover your living costs and the Court fees out of their own pockets.

Why it’s Important to Have Both a Will and LPA

One of the best ways to try and ensure that you and your loved ones won’t end up in this situation is to put a Will and LPA in place. If you put a Will in place, but don’t decide to also create an LPA then your family could find themselves powerless to take care of you if anything happened to you during your lifetime.

If you set up an LPA but don’t put a Will in place, then you will have no control over what happens to your money and belongings after you die.

Call Co-op Legal Services for initial advice on 03306069591 or contact us online and we will help you.

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