COVID-19 Q&A | Sintons | Wills, Trusts & Estates
During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.
Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.
We will bring you a question and answer per day for the next few weeks.
Q – I do not currently have any provision for my future and the tragic effects of COVID-19 have made me realise I need to protect my family if anything happened to me. However, I am confused as to why I would need both a will and a lasting power of attorney (LPA). Surely if I make a will, I can document all my wishes in there?
A – It is important to consider your will and LPA as two equally important, but quite separate, legal documents. Ideally, both should be completed to ensure that your affairs will be managed in accordance with your wishes. However, they perform very different functions and, crucially, operate at different times.
LPAs allow you to appoint one or more people, known as “attorneys”, to manage your affairs during your lifetime. There are two different types of LPA. The first allows your attorney to manage your property and financial affairs, which means they can help to pay your bills, manage your bank accounts or even sell your home. The second type relates to health and care decisions and allows your attorney to make decisions regarding your daily routine, where you live and what medical treatment you receive. LPAs can be used if mental capacity is ever lost due to a serious brain injury or disease of the brain and, in the case of a property and affairs LPA, even while you still have mental capacity to manage your affairs if the attorney has your permission.
A common misconception is that a LPA can continue to be used after a person has died. The attorney often believes that they can still access bank accounts or sell assets because they act under a power of attorney. This is not true. The authority of an attorney ends on the death of the person who made it. The attorney should not take any steps to deal with the deceased’s estate, unless they are an executor appointed under a will or the administrator where a person dies without a will.
Conversely, a will only takes effect on death. You are free to change your will as many times as you wish throughout your life (provided you have mental capacity). Up until the point of death, the will does not give anybody the power to deal with your assets. After your death, only your executors named in your will have the ability to manage your estate.
It is important to consider your will and LPA carefully. For example, you may wish to appoint different people to be your attorneys as you would your executors, perhaps because different members of your family have different skill sets.
Finally, one important limitation on the powers of an attorney is that they are unable to change a person’s will. This is a confidential document and cannot be altered without authorisation from a Court.