Private client – Wills, Power of Attorney and Deputyship, probate
There may be a circumstance or time in the future where it is impossible for you to make rational decisions for your health and welfare and where others can be relied upon to make these legal decisions for you. At AGR Law, we are able to offer a number of services to protect the decisions relating to your future, regarding health and finance.
It may also be possible for others to make decisions for you on a short term basis. This could be due to you spending time in another country or to act on your behalf in a financial situation.
Introduction to Power of Attorney
The person making the power of attorney and granting the authority is known as the donor. The person granted the authority to act is known as the attorney.
Since 1st September 2007, it has been possible to make a Lasting Power of Attorney or an Ordinary Power of Attorney. (Enduring Power of Attorneys signed before this date are still valid).
Ordinary Power of Attorney
An Ordinary Power of Attorney (OPA) enables you to grant authority to an individual, usually for a short period of time, to act on your behalf for a specific reason. This could be to carry out a transaction for you whilst you are away or to act on your behalf with the bank. An OPA is only valid whilst you still have mental capacity to make decisions for yourself.
Lasting Power of Attorneys
If it has been determined that you may need to appoint someone for you as you are starting to find it difficult to make decisions, you may need a Lasting Power of Attorneys.
There are two forms of Lasting Power of Attorneys (LPA). These are:
- An LPA that grants authority in relation to the donor’s property and financial affairs.
This type of LPA can allow, for example, the attorney to pay the donor’s bills, sell their property or investments and operate their bank accounts. The attorney can use the LPA whilst the donor still has capacity, unless the donor specifies otherwise in the LPA.
- An LPA that grants authority in relation to the donor’s health and welfare.
This type of LPA can only be used when the donor loses capacity (or the attorney reasonably believes that the donor has lost capacity). The attorney can make decisions about the donor’s medical treatment, but the attorney cannot make decisions about life-sustaining treatment unless the donor specifically permits this in the LPA. The attorney can also make decisions, for example, about the donor’s diet, where they live and how they spend their time, unless the donor specifies otherwise in the LPA.
You can only grant an LPA if you still have the mental capacity to make decisions for yourself.
If someone lacks capacity to make decision, they can no longer grant a Power of Attorney. The only way to obtain authority to act on their behalf is to apply to the Court of Protection to become that person’s deputy. As with LPA’s, a deputy is either appointed to look after the individual’s property and financial affairs or health and welfare. The Court of Protection can appoint a deputy for both.
As people, we may not want to think about the end of our lives; however, it is important to make arrangements as to what should happen after our lifetime.
A Will sets out your wishes and feelings about how your estate should be transferred and to whom after you die. A Will can specifically deal with customs and traditions that should be observed as regards to your burial or whether you wish to be cremated.
If you have children under the age of 18 years old, you could stipulate in your Will who should become your children’s legal guardian and any trusts you would like to put in place.
Contact our team if you would like assistance creating your Will.
A will is a document that sets out the last wishes and the administration of one’s estate when they die. Where there is more than one will the most recent one will be valid. However, it is advisable to keep copies of all earlier wills.
The will also indicates who should be the administrator of the estate, this person is known as the executor. You can have a maximum of four executors to a Will. It is the duty of the executor to apply for the grant of probate as only being named an executor does not give one the right to deal with the estate as directed. If more than one person is named as an executor, you must all agree who makes the application for probate.
A grant of probate gives one, i.e. the executor, the right to deal with the testator’s (testator is the term given to the deceased and author of the will) estate as instructed in the will. This means one may apply for the grant of probate only where there is evidence of a valid will. In the absence of a will, one will have to make an application for a letter of administration. Only the executor can apply for probate.
One has the right to decline to be an executor. If you do not want to be an executor, you can do one of the following:
- You can completely renounce your right to apply for probate. This is done by filling in a renunciation form and send it with the probate application form.
- You may reserve your right to apply for probate later if another executor cannot deal with the estate (holding ‘power reserved’).
- You may appoint an attorney to act on your behalf – fill in an attorney form and send it with the probate application.
When an executor is unable to apply for probate due to death i.e. they had passed away, a replacement executor should apply for probate.
A replacement executor should also apply for probate where the executor does not have ‘mental capacity’ to do so. A doctor must fill in a mental capacity form which must be sent with the probate application.
For further advice, on applying for probate, please contact the team and we will be happy to guide you through the process