2020-04-15
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Coronavirus FAQ’s: Wills and Powers of Attorney

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Posted by Tracy Ashby on 15 April 2020

Tracy Ashby - Wills and Tax Lawyer
Tracy Ashby Head of Private Client - Senior Associate

Uncertainty is one of the many impacts of Coronavirus and it’s creating lots of challenges and questions. We simply don’t know when the lockdown will be lifted, how long the pandemic will last or when normal life will resume. We’ve decided to collate some of our frequently asked questions to hopefully answer some of your queries concerning Wills and Powers of Attorney.

I don’t have a Will, do I need one?

If you die and don’t have a Will you will be ‘intestate’. Without a Will your estate (your money, property, possessions and assets) will be distributed according to the Rules of Intestacy. These are rigid rules and it is these rules that determine who benefits from your estate.

A Will allows you to decide who will deal with the distribution of your estate. You also choose your beneficiaries and what each will inherit. Your Will may also contain instructions such as guardianship for your children, your funeral wishes, what happens to your digital assets or trusts to ensure your loved ones are financially protected or the IHT payable on your estate is kept to a minimum.

I made my Will many years ago, do I need another?

We recommend that you revisit your Will at least every 5 years as it’s important to check that it reflects your current circumstances. Just because your Will is old, it should not affect its validity. However, if your assets have changed or you wish to make an amendment, your Will needs to be updated accordingly.

I need to amend my Will what do I do?

A minor amendment to a Will may be made by a Codicil. Similar to a Will, it is a legally binding document and therefore, there are certain requirements that must be satisfied for it to be valid.

If you’ve already made several Codicils or you wish to change the content of your Will substantially, it is likely to be more advantageous to revoke your current Will and make a new one.

I have a Will, do I need a Power of Attorney?

A Will can only deal with your estate after you have died whereas a Power of Attorney can operate only whilst you are alive.  Power of Attorney can be used at your direction or, for certain types of Power of Attorney, when you lack mental capacity to make you own decisions.

A Power of Attorney is a legal document giving authority to the people you chose (your attorneys) to manage certain decisions on your behalf. These decisions could relate to your health and welfare, your financial affairs or property.

What’s the difference between an EPA and LPA?

Enduring Powers of Attorney (EPA) can no longer be created and have been replaced with Lasting Powers of Attorney (LPA)

An EPA is a legally binding document providing authority to your chosen attorney(s) to help or make decisions regarding your property and money. Only EPA’s made and completed before 1st October 2007 are valid.

There are 2 types of LPA, the first deals with your property and financial affairs and the second with your health and welfare. You can make one or both types of LPA. To be used, they must be registered with the OPG. Also, the health and welfare LPA may only be used if you don’t have mental capacity at the time a decision needs to be made.

I’m an attorney, if I catch Coronavirus what will happen?

As an attorney the decisions you are making must be made in the best interests of the donor (the person who you are making decisions on behalf of). The Government have strict lockdown measures including social distancing. The donor may be self-isolating if they are considered particularly vulnerable or if they reside in a care home visits may have been suspended. It is advisable you maintain contact with your donor by phone, video call or letter. This way you can maintain your own isolation and comply with the Government guidelines whilst keeping in touch.

If you don’t feel that you can act as attorney, there are three ways to cancel it:

  1. The donor can cancel the LPA if they have mental capacity.
  2. You can notify the OPG, donor and any other attorneys through the designated form.
  3. If the donor survives you and there are no other nominated attorneys, the LPA will be cancelled automatically. The donor, if they have mental capacity, will need to create a new LPA for someone else to act as their attorney.

I already have an EPA, can I amend it?

No - EPA’s cannot be amended.   You will need to cancel your EPA and make an LPA instead.

Should I make a General PoA or an LPA?

A General Power of Attorney allows you to provide authority to someone else to act on your behalf for matters concerning your financial affairs. A General PoA is effective as soon as it has been signed and witnessed. It could be useful in the current circumstances for example, to help an elderly relative to pay their bills or access their accounts online, especially if they are not internet-savvy.  This type of power of attorney automatically ends in the event of mental incapacity.

An LPA can also concern your financial affairs. The LPA must be registered with the OPG before it can be used. The registration process takes approximately 12 weeks.  The LPA continues throughout any period of mental incapacity.

What is a Living Will?

Living Wills are often referred to as Advance Directives or Decisions. Whilst you have mental capacity, you can decide if there are circumstances when you may wish to refuse medical treatment in the future.

An Advance Decision is only used if you have lost the ability to provide refusal or consent yourself.   These documents are often made by those who have strong wishes, do not want anyone else to make the decision for them, a degenerative disease, are terminally ill or follow certain religious beliefs.

About the author

Tracy Ashby

Head of Private Client - Senior Associate

Since qualification as a solicitor in 2005, Tracy has gained a vast amount of knowledge and experience in all private client related issues. Advising on care fee funding and protecting vulnerable clients is her particular area of expertise.

Tracy Ashby

Since qualification as a solicitor in 2005, Tracy has gained a vast amount of knowledge and experience in all private client related issues. Advising on care fee funding and protecting vulnerable clients is her particular area of expertise.

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