This section aims to guide you through some of the administrative aspects and decisions to make, including your finances, making a will, power of attorney, and your choices about medical treatment.
About 70% of people in the UK die without having written a will.
A will is the legal document that determines how your estate (everything you own i.e. possessions, monies and property) is distributed after your death.
Write one so that your estate is distributed as you wish and so that any dependent children have guardians of your choosing. Without a will you are considered to have died intestate, and the law then decides who inherits your estate and how much of it they will receive, and more tax may be paid. Importantly, dependants and family may not be able to easily access funds making it difficult to manage financially if you have left no instructions in a will.
You can write your own will or have a solicitor do it for you. However, wills can be contentious and probably only the simplest of wills should be done by oneself. It is advised to seek professional advice. There are charities who will do it for free or a donation and, apart from solicitors, there are professional will writers. The document must be witnessed by two independent people (i.e. who are not involved in your will in any way).
Remember to keep your will up to date. Are the people named in it still alive? Still in touch? Do you have up to date addresses for them and are these written down? It is worth reviewing your Will following any life changing event. For example, following remarriage, your Will is null and void and must be rewritten.
You can choose one or more people to make decisions about money or property for you and give them the legal power to act for you with a Lasting Power of Attorney (LPA) for property and financial affairs. It can be used immediately or when you choose at some time in the future.
If you become too unwell to manage, your financial affairs might get in a muddle resulting in loss of benefits, unpaid bills, and debt. With an LPA for property and financial affairs this can be avoided. It can be used at any time so you can act alongside your attorney(s) and retain control over some areas while asking them to deal with areas you prefer to delegate. Alternatively, it can be activated at a future time (so long as it has been prepared).
An LPA can only be created whilst you have mental capacity and cannot be used until it is registered with the Office of the Public Guardian. This process can take time, so you may wish to register the LPA as soon as you have completed it.
You can create an LPA yourself using forms and guidance notes found on the government website or by using a solicitor. You may feel reassured if it has been undertaken by a solicitor and less of a worry.
How does the process work?
- Decide who you would like to ask to be your attorney(s)
- If having more than one attorney, decide if you want them to act ‘jointly’ (together) or ‘severally’ (alone). If acting ‘severally’, each attorney can make a decision and act by themselves (this is a flexible arrangement but can leave individuals with great responsibility and power). If ‘jointly’, each attorney must agree to every decision and they can only act together (this may be cumbersome but makes every decision transparent and every attorney takes a share of responsibility).
- Ask the attorney(s) if they would be willing to act
- Create the LPA and have it certified
- Register it with the Office of the Public Guardian so you know that it is valid.
- Make sure that those people such as banks and your accountant know that you have an attorney and who he or she is. They may require sight of the certificate.
An LPA for health and welfare gives one or more people the legal authority to make decisions about your medical and social care. The attorney(s) can only make these decisions if you no longer have the mental capacity to do so yourself. It is a completely separate LPA to the one used for property and financial affairs and can have the same or different attorney(s). Having one type of LPA does not mean you must have both.
Without an appointed Attorney for health and welfare, “best interest decisions” may be made by health or social care professionals. Your next of kin do not automatically have any legal right to make decisions on your behalf.
A Lasting Power of Attorney cannot be used until it is registered with the Office of the Public Guardian. This process can take some time, so you may wish to register it as soon as you have completed it. When you set up a Lasting Power of Attorney it is important that the name(s) of your attorney(s) are made known to your GP and to any others (family, friends) as appropriate.
You can create an LPA yourself using forms and guidance notes found on the government website or by using a solicitor.
How does the process work?
- Choose people who are like-minded and have a good idea of your preferences as they are more likely to make the decisions you would want.
- If having more than one attorney, decide if you want them to act ‘jointly’ (together) or ‘severally’ (alone). If acting ‘severally’, each attorney can make a decision and act by themselves (this is a flexible arrangement but can leave individuals with great responsibility). If ‘jointly’, each attorney must agree to every decision and they can only act together (this may be cumbersome but makes every decision transparent and every attorney takes a share of responsibility).
- Ask them if they would be willing to act on your behalf.
- Discuss your priorities with them.
- You will need a Certificate Provider who certifies that you are mentally capable and understand and that you are not being manipulated and abused. This provider can be somebody who has known you for two years or more or one of the ‘experts’ in your life such as your GP, solicitor or social worker.
- Create, certify and register the LPA with the Office of the Public Guardian.
- You will retain full control unless you lose the mental capacity to make decisions for yourself.
An Advance Statement is not legally binding but in it you write down what is important to you about your future care which will make it clear to all concerned what you prefer. It is not a substitute for your advance directives for financial and health management.
If you are unable to communicate your wishes in the future, it will help to guide health care professionals making decisions about your care. You may also state your wishes regarding organ and tissue donation as part of your Advance Statement. An Advance Statement can cover anything that is important to you, both for medical care but also personal preferences such as wanting a particular blanket with you or liking a certain type of music playing in the background or how you would like your cat or dog to be looked after.
This important and is another way of being in charge and independent in your planning and managing the end of your life.
Do you have shares, bonds, pensions, policies? Write a list. Who are they held with, what are the reference numbers? Do they work for you in the future? Where are the original certificates? Keep up to date records. If you don’t understand it, how will anyone else? If you have a spouse or partner share as much of this information with them as you can. Likewise, your executor will find it helpful if he knows or can easily find the information he needs. Central to all this is the importance of making a will.
Tax
Many of us have personal experience of how tricky it can be to navigate HMRC following a death. Make sure your affairs including tax are up to date. Do you file your own returns? If not, write down your accountant’s contact details.
IT
A reminder that these days so much is on line. Do your dependants know what you have and where it is held? Is there a paperwork trail and record of all accounts, references, account names, etc. We all know how willing institutions are to give up assets that can sit with them in dormant accounts and then be reabsorbed into the company.
Does somebody need to know your passwords?
Finding staying on top of it all tricky? Think about a Lasting Power of Attorney as a way of helping you if need be.