Understanding how to manage your affairs both during your lifetime and after your death is a vital aspect of long-term planning. While making a will ensures that your wishes are respected once you pass away, it does not address what happens should you become incapacitated or otherwise unable to make decisions in your best interests during your lifetime. That’s where appointing a Power of Attorney becomes fundamentally important. Pairing a well-drafted will with a lasting Power of Attorney creates a comprehensive plan that covers every phase of life — from unforeseen incapacity to the final distribution of your estate.
This article explores in detail how one can go about establishing both a will and a Power of Attorney, why coordinating the two is crucial, and how to do so in a legally sound manner in the UK. Whether you are making end-of-life preparations or simply putting your financial and healthcare preferences in writing, this guide aims to inform and empower you with the knowledge to make well-considered decisions.
Before delving into the process of appointing both a Power of Attorney and drafting a will, it’s important to understand how they differ and why they are both necessary.
A will is a legal document that outlines how you would like your assets and possessions to be distributed after your death. It may also include directives like naming guardians for minor children, making charitable bequests, or establishing trusts.
In contrast, a Power of Attorney is a legal document that grants someone you trust the authority to make decisions on your behalf during your lifetime. These decisions might relate to your financial affairs, property, or even your health and welfare. Notably, the authority given under a Power of Attorney ceases to have effect when you pass away, at which point your will takes over.
Both documents serve separate but equally vital purposes. Ensuring that they are created to complement each other not only secures your future interests but also significantly reduces the legal complications and emotional strain on your loved ones.
In the United Kingdom, there are two main forms of Power of Attorney established under the Mental Capacity Act 2005: the Lasting Power of Attorney (LPA) for health and welfare, and the LPA for property and financial affairs.
The LPA for health and welfare empowers someone to make decisions regarding your medical treatment, living arrangements, and daily care, but only when you are no longer capable of making these decisions yourself.
The LPA for property and financial affairs, on the other hand, allows your chosen attorney to handle your finances, such as managing bank accounts, settling bills, and even selling property, either before or after you lose capacity, depending on your preference.
There is also an older type of arrangement called an Enduring Power of Attorney (EPA), which was replaced by the LPA system in October 2007. EPAs created before this date are still valid, but new ones cannot be made.
It might seem that creating a will and appointing a Power of Attorney are separate legal matters that can be handled independently. While they certainly can be, there are significant advantages in managing both together.
First, aligning the two documents helps ensure consistency in your choice of trusted individuals. For example, if you choose your daughter as your executor — the person who will manage your estate after your death — it may also make sense to appoint her as your attorney to manage your affairs during your lifetime.
Second, dealing with both aspects simultaneously allows for more thoughtful planning. Legal professionals can advise on estate and incapacity planning in a cohesive way, using knowledge of your total asset portfolio, family structure, and medical circumstances to provide a unified strategy.
Finally, taking comprehensive action helps alleviate future stress and confusion for your family. In times of crisis, be it due to ill health or bereavement, having clear, legal documents already in place means your loved ones will not have to make hurried or contentious decisions amidst emotional turmoil.
One of the most critical decisions when establishing a Power of Attorney is selecting the person or people who will act on your behalf. This should be someone you trust implicitly, who understands your values, and who is capable of handling the responsibilities involved.
Attorneys must always act in your best interests, but the law does not require them to be legally or financially trained individuals. In many cases, people appoint close family members, such as a spouse, child, or sibling. However, you might also consider a trustworthy friend or a professional, such as a solicitor or accountant, particularly for more complex financial affairs.
It is also possible to appoint more than one attorney. You can have them act jointly (where they make all decisions together), jointly and severally (where they can act independently), or a combination of both (where they have joint authority over some decisions but can act individually on others). Each approach has its own risk and merit, and it is worth discussing this complexity with a solicitor before finalising your document.
An attorney under a Power of Attorney assumes a great deal of legal responsibility. They must only make decisions that they are authorised to make and are obligated to adhere strictly to the principles of the Mental Capacity Act 2005. They must also:
– Act in the best interests of the person who appointed them.
– Take into account past and present wishes and feelings of the donor.
– Avoid conflicts of interest and make decisions that reflect the values and beliefs of the person concerned.
Attorneys managing financial matters must also maintain accurate financial records and be prepared to account for their actions, especially if questioned by the Office of the Public Guardian or a court.
To set up an LPA in the UK, you will need to complete the relevant forms available from the government website or through a legal service provider. You must complete separate applications for property and financial affairs and health and welfare if you want both.
Each form requires the identification of your attorneys, and you will need a certificate provider, someone who confirms that you understand the document and are not under pressure to sign it. This provider can be a friend of more than two years, a professional, or a registered healthcare worker.
Once the forms are completed, they must be signed in a specific order and then registered with the Office of the Public Guardian (OPG). This process currently takes around 20 weeks, and the cost is £82 per LPA, although individuals on certain benefits may be eligible for a fee reduction or exception.
When a person takes the time to both write a will and appoint a Power of Attorney, they create a seamless legal structure for dealing with illness, incapacity, and their eventual passing.
Here are a few ways in which these documents can interact:
– Executors and attorneys can be the same people: Appointing the same individual(s) in both roles can streamline decision-making and reduce the risk of miscommunication or conflict.
– Asset planning can be coordinated: Knowing how an estate will likely be distributed after death can guide attorneys in managing those same assets during the donor’s life. For instance, decisions about making gifts or selling properties can be evaluated within the context of overall estate planning.
– Legal clarity in healthcare and financial directives: While a will includes post-death directives such as funeral wishes, an LPA ensures your preferences regarding living arrangements, medical treatments, and end-of-life care are respected during your life.
Failing to put an LPA in place can result in serious complications should you lose mental capacity due to age, illness or injury. Without an LPA, no one — not even your spouse or children — has automatic legal authority to make decisions on your behalf.
In such cases, someone would need to apply to the Court of Protection to be appointed as your deputy — a process that is time-consuming, more expensive than registering an LPA, and subject to ongoing court supervision. Furthermore, there’s no guarantee the court will appoint the person you would have chosen yourself.
This legal vacuum can delay necessary medical or financial decisions and place further emotional stress on your family. By proactively appointing an attorney, you retain control and protect your interests with a legally enforceable framework.
Many people choose to engage a solicitor or estate planner when preparing both a will and an LPA. While these documents can be DIY in theory, the complexity of your wealth, family dynamics, or health circumstances may necessitate professional advice.
A solicitor can ensure that both your will and LPA are not only valid but structured in a way that meets your personal, financial, and legal goals. They can also help avoid common mistakes, such as ambiguous wording, unqualified witnesses, or inconsistency between documents.
Further, if you have international considerations — such as overseas property, a non-British spouse, or dual citizenship — a solicitor’s guidance becomes essential to ensuring your affairs are not subject to conflicting legal jurisdictions.
Once your will and Powers of Attorney are complete, it is essential to store them properly. Your will should be kept in a secure yet accessible place, such as with your solicitor, in a fireproof home box, or at a local registry service. Equally, the registered LPA should be stored with registration documents from the OPG, and your chosen attorneys should have either the original or certified copies.
It’s also crucial to inform close family members and key individuals of the whereabouts of these documents. Inaccessible or lost legal documents can lead to delays in carrying out your wishes and could result in unintended consequences.
Life changes — and when it does, so should your planning documents. Marriage, divorce, the birth of children or grandchildren, significant changes in health or financial circumstances, or the death of someone named in your documents are all events that may prompt a review of your will and Power of Attorney.
In the UK, it’s advisable to review your will every 3 to 5 years, or whenever a major life event occurs. Although minor amendments can be made via a codicil, substantial changes usually require writing a new will. Similarly, if your appointed attorney is no longer suitable due to a breakdown in relationship, relocation, or their own health issues, you may need to revoke the existing LPA and create a new one.
It’s also important to stay informed about changes to legislation that could impact your estate or capacity planning. Consulting a solicitor periodically ensures your documents remain legally valid and aligned with current law and your evolving preferences.
Planning for the future isn’t always easy, but taking the time to put robust legal safeguards in place is one of the most responsible and empowering actions you can take. A well-drafted will ensures your assets are distributed according to your wishes after death, while a Lasting Power of Attorney protects your interests if you’re ever unable to make decisions yourself.
By establishing both documents — and keeping them up to date — you provide your loved ones with clarity, reduce the likelihood of legal disputes, and most importantly, retain control over how your affairs are handled throughout every stage of life.
Though it might feel like an administrative burden now, future-proofing your personal, financial, and medical choices through proper planning is a profound act of care — both for yourself and those closest to you.
Privacy Policy
Terms and Conditions
Disclaimer
COPYRIGHT © 2024 MY WILL AND PROBATE
