Planning for the future is something many of us put off, but having a power of attorney, a will and a living will in place can help ensure that your wishes are respected if you are unable to make decisions for yourself in the future.
In this article we will tell you a little bit about each of these legally binding documents to help you understand why it is prudent to consider the benefits of each.
Power of Attorney (POA): Ensuring Your Affairs Are in Trusted Hands
Imagine a situation where you're unable to make decisions for yourself due to illness or an accident. Who would you want to handle your finances or make crucial health decisions on your behalf, such as choosing a care provider? A power of attorney allows you to appoint someone you trust to manage these responsibilities, ensuring your affairs are in good hands if you lose the mental capacity to do so in the future.
You can only appoint someone as a power of attorney while you have the mental capacity to do so. Although there are contingencies for situations where no one has been appointed, these can delay health, welfare and financial decisions because they are time-consuming to arrange. Additionally, it is more expensive for a family member to apply for the alternative, deputyship, through the court if other arrangements haven’t been made.
We have had calls from clients whose parents set up a third-party mandate with their bank, allowing a family member to help with their finances, but the parent has sadly had a stroke or dementia has developed or progressed, the parent no longer has mental capacity to manage their finances and the bank is no longer able to accept the mandate, instead requiring evidence of a power of attorney having been appointed.
Therefore, it is prudent to explore your options so you can make an informed decision about whether to appoint someone - or even more than one person. Additionally, if you have someone in mind, it's important to ensure they understand the responsibilities involved and are willing to take on the role.
There are two main types of Lasting Power of Attorney:
• Property and Financial Affairs LPA: This allows your appointed person to make decisions about your finances and property.
• Health and Welfare LPA: This allows your appointed person to make decisions about your health and personal welfare.
Some people are hesitant to appoint a power of attorney because they believe that the person they appoint can immediately start making decisions. However, neither takes effect until registered, which you can do upon application if you wish, and even then, the Health and Welfare POA does not come into effect unless you lose mental capacity. This is also the case with Property and Financial Affairs POA, except here you can specify an alternative preference if you wish.
There are situations that arise where a person can appoint a temporary power of attorney for financial decisions via arranging an Ordinary or General Power of Attorney but the individual must have mental capacity to appoint someone. We would recommend getting legal advice.
The Importance of a Will: Peace of Mind for You and Your Loved Ones
A will has a vital function: it's a way to ensure that your assets are distributed according to your wishes after your death. Without a will, the rules of intestacy takes over, which might not align with your preferences and is a rather long-winded process. By clearly outlining your desires, you can minimise potential family disputes and appoint executors who you feel will manage your estate in the best possible way. For younger parents, a will allows you to designate guardians for your minor children, ensuring they are cared for by individuals you trust. This not only provides peace of mind for you but also clarity and stability for your loved ones.
To create a will, start by listing your assets and deciding how you want them allocated, then consider who might best be appointed and would be willing to be executors to carry out your instructions. You may wish to consult a solicitor to find out the best options for your particular circumstances, and if there is a substantial estate, to understand tax implications, whether there could be any dispute over your will and generally to ensure your will is legally sound.
Whilst you can of course write your will at any time, an excellent opportunity is during Free Wills Month in March and October, when participating solicitors offer free will-writing services for individuals aged 55 and over in exchange for a charitable donation. This initiative not only provides peace of mind but also supports worthwhile causes.
Living Will/Advance Decisions and Advance Statements: Making Your Medical Wishes Known
A living will, or advance decision, is about making your medical treatment preferences known regarding life-sustaining treatment, should you become unable to communicate them yourself if you lose mental capacity to make the decision in the future.
It enables a person to record their wishes in a legally binding way, if they would like to refuse life-sustaining treatment or treatment intended to prolong their life whether that’s all life-sustaining treatment or just some life-sustaining treatments in particular circumstances.
Where a person does not have a living will in place the decision would otherwise be made by their Health and Welfare Power of Attorney, where they have one, or on a best interests basis where a ‘decision maker’, such as a doctor or other health professional, would make the decision, but in consultation with family.
By documenting your wishes, you ensure your healthcare aligns with your values and you are able to maintain control over your end-of-life care by giving clear guidance to your loved ones and healthcare providers.
Advance Statements are different in that they are not legally binding, but they allow a person to record their wishes and preferences for future care. This might include where they would like to be cared for, any religious beliefs that could affect their care, or their daily routines. These statements can provide guidance to a person's attorney if they need to make decisions on your behalf in the future.
Taking Control of Your Future
Overall, having a power of attorney, a will, and a living will provides legal clarity and more control over your personal and financial affairs, which can offer peace of mind for both you and your family. These documents can save time and money by avoiding lengthy legal processes and ensuring that your estate is managed according to your wishes.
Don't wait for tomorrow to plan for the future. Take action today to put these important documents in place, and provide yourself and your family with the reassurance that everything is taken care of, no matter what happens.
Grace Consulting are the UK’s founding providers of expert independent advice on elderly care advice, special needs advice and neurodiversity advice.
Independence and client wellbeing are at the heart of everything we do. We listen, reassure and advise you on how to move forwards and find the best possible solutions for your unique life challenges.
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