The importance of creating a will and a lasting power of attorney…
As a young lawyer in my 20s I did not consider for one moment what would happen if I was involved in an accident or if I was to develop a serious illness. Life was abundant, I had everything to look forward to, and I was working hard to build a family and career.
The importance of making a will and considering protecting my family did not even really hit me when I had my daughter in my 30s. At that stage I was too busy fitting in working life around bringing up a young child, keeping active and trying to get some sort of balance in amongst the mad busyness of life.
But life has a funny way of being unpredictable and it is important to review our legal affairs regularly so that we are prepared should our situation change, and to make sure our loved ones are properly protected to combat this unpredictability.
Making a will
A will allows you to decide where you want your assets to pass to on the event of your death and you may need to also plan ahead to avoid possible large tax bills. If you do not have a valid will, your assets will be distributed according to the laws of intestacy.
Creating a will is essential when you have children. Even if you have no assets, create a will so you can appoint people you trust (guardians) to look after your children in the event of you no longer being around for them. (Do also be aware of who has ‘parental responsibility’ for your children.) Think carefully about who you would want to bring up your children, confirm with them that they would be willing to do this for you and then create your will. Would you really want the local authority to make these decisions and look after your children on the event of your death?
When you are married, potentially all of your assets automatically pass to your spouse unless you state otherwise in your will. Many people do not realise that property can be owned jointly or as tenants in common. Any joint asset passes automatically to the surviving owner regardless of the terms of your will. If you own property as tenants in common with another your share can pass to whoever you would like it to go to but be aware that without a valid will, it will automatically pass to your spouse (subject to the laws of intestacy). Think about what you want to happen. Maybe you would like your assets to pass to your children or your siblings and not your new spouse.
Likewise if you are getting divorced, think about creating a will to protect where you want your assets to go.
Creating a lasting power of attorney
A lasting power of attorney (LPA) is a legal deed which allows you to appoint people you trust (attorneys) to handle your affairs (property/finances and health/welfare) when you are no longer able to make decisions for yourself. This could be through an accident, illness (such as cancer, dementia, stroke) or due to experiencing a traumatic incident, such as surgery not going to plan, witnessing threatening situations and loss. Sadly, many people can suddenly experience loss of mental capacity unexpectedly, and it is not limited to those who are older in age.
If you did lose capacity before creating an LPA your assets are frozen (this includes joint assets) and anyone (e.g. family, friends, local authority) can potentially apply to the Court of Protection to become your deputy to manage your affairs. Be aware that your next of kin cannot legally manage your affairs without an LPA or deputyship.
Creating an LPA means that there is little disruption in how your affairs are managed and you have the people you trust making decisions for you, which could be your partner, children or close family/friends. Joint assets, as well as your own assets, can be dealt with by your attorneys, subject to any preferences and instructions you have included within the LPA.
Having a Health and Welfare LPA means that your attorneys can also decide where you are going to live and what treatment you will receive, subject to any preferences and instructions you have included within the LPA. Your attorneys effectively become your voice and social services/medical profession have to consult with them and act on their instruction.
I will be honest and tell you that I put off creating a will and making LPAs for years as I didn’t know who I wanted to be my daughter’s guardians and who I trusted enough to handle my affairs. It sat uneasily in my mind as I knew the consequences (I am now divorced, I have a teenage daughter I am fully responsible for, I needed to appoint guardians and attorneys) but somehow, I kept putting off the decisions. It was only when I was told I needed major surgery in 2017 that I decided enough was enough. I created a will and LPAs to make sure that my daughter’s life can continue smoothly in the event of me losing capacity or upon my death.
How do I now feel? Relieved! I can rest knowing that no matter what happens in life, I have done the best I can do for my daughter whilst she remains in my care, and the best I can do for myself (and consequently my daughter) should I ever lose capacity.
If you would like more information or a free consultation please get in touch.