Most of us have various insurance policies in place that safeguard our properties, cars, or even pets, but what about legal documents that protect you and those you love? Do you believe that your family or loved ones will legally be able to step in and assist you should something go wrong, or once you are married or in a civil partnership that your spouse is automatically protected? You are not alone, as most people assume the same thing, but this is not correct. Here are a few of the most frequently asked questions and myths to help make things a little clearer.
Lasting Powers of Attorney
While we hope that we will never need to use our house or car insurance, we have them in place to protect us if we do. In the same way, even if you never need it, a Lasting Power of Attorney (LPA) could protect you and your future. By putting in place a Lasting Power of Attorney, whilst you still have the mental capacity to do so, you are giving someone you trust the authority to make decisions and act on your behalf if you lost the ability to make those decisions for yourself.
There are two types of Lasting Powers of Attorney:
- Property and Financial Affairs
- Health and Welfare
These come into effect if you lose mental capacity or if you want or need someone to act for you. It protects your interests while you are alive.
Read our Top 10 Tips Guide for Lasting Powers of Attorney for more information.
What is a General Power of Attorney?
A general power of attorney (GPA), also known as an ordinary power of attorney, or simply a power of attorney, in its basic form, is a legal document that allows someone you trust to make decisions about your property and financial affairs. However, unlike a Lasting Power of Attorney, it is only valid while you still have mental capacity. There are various reasons you may find one useful. A GPA may be suitable if you need assistance for a temporary period for example because you are:
- unwell,
- recovering from an injury,
- travelling abroad; or,
- want someone to act for you.
Currently, the most common use for a GPA would be concerning the Coronavirus Pandemic – in cases where you need someone else to make decisions or sign documentation – e.g., if you need to self-isolate or are in hospital. Business owners may find these especially useful and can delegate significant responsibility for their financial affairs and the running of their business in the event they are unable to. The donor (the person setting up the GPA) can still make decisions for themselves if they want to.
What are the main misconceptions about LPAs?
Over 70% of people believe that if you are married or in a civil partnership, your spouse would automatically be able to deal with your bank account, other financial affairs or have the final say about your healthcare if you lose the ability to do so. Unfortunately, without the correct LPA in place, with a named attorney, this is not the case, and they will not have the authority to do so. In those circumstances, a family member or loved one would have to apply to the Court of Protection to be appointed as your “Deputy”. That process is complex, expensive, and lengthy. – Read our previous article on The importance of lasting powers of attorney at any stage of life.
It may be uncomfortable talking about what happens if you lose mental capacity in the future, but making these decisions now, and putting in place appropriate legal documents, will save further distress and complications if that happens.
What is mental capacity?
Mental capacity in legal terms is your ability to:
- understand the information relevant to the decision;
- remember the relevant information (for at least a short period);
- to use or weigh up the relevant information when making the decision; and
- communicate the decision.
- In short, it is having sufficient understanding to comprehend the situation and the consequences of a decision at the time the decision is made.
If you lose mental capacity, the Mental Capacity Act 2005 (MCA) protects you and your rights. It provides a statutory framework to protect vulnerable people who may not be able to make their own decisions.
The MCA says:
- Assume a person has the capacity to make their own decisions, unless it’s proved otherwise
- As far as possible, help people make their own decisions
- Do not consider a person as lacking capacity merely because they make an unwise decision
- If you make a decision for someone who lacks capacity, it must be in their best interests
- Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. The Court of Protection may need to become involved if you lose mental capacity to make or communicate your own decisions before setting up a Lasting Power of Attorney.
When should I write or amend a Will?
Putting a valid Will in place, whereby you are of sound mind when creating it, is something all adults should do, but the majority of adults in the UK have not. If you do not already have one in place and have had a change in your personal life or financial circumstances, it would be an excellent time to consider writing a will or amending an existing one to make sure it is up to date. Having a valid Will makes sure your loved ones are protected, and your wishes are carried out.
Legal Rights of unmarried partners – are you automatically entitled to inherit if you have children together?
Many unmarried couples assume there is something called ‘common law marriage’, whereby they are legally protected if they have been living together for a long time or have children together. Unfortunately, under our current laws, there is no such thing. If your partner dies without a Will or did not name you as a beneficiary, there is no automatic right to the estate. Unmarried and cohabiting partners have a legal right to claim against their partner’s estate if they have lived together for more than two years or can prove dependency on their partner, but it can be a long and complex process.
If you have children together, and your partner dies without a Will, the Rules of Intestacy states that their estate goes to their closest living blood relative, in which case your children will be recognised as your partner’s next of kin. If you are not married or in a civil partnership, making a Will protects one another and can help avoid the stress, uncertainty, cost, and complex procedures that can come with claiming against an estate.
Read our Top 10 Tips guide for Making a Will for more information.
Can I create my legal documents online without a Solicitor?
Using online services, or without the advice of a regulated professional, may seem like a cost-effective way of putting in place these legal documents. However, there are risks associated with completing them in this way. Mistakes can be complex and expensive to set right, and usually, these mistakes are not discovered until it’s too late (for example, if the person has already died). Your beneficiaries or executors would be left to deal with the issues caused. More significantly, perhaps, is the concern that most online services are not provided by regulated legal professionals and that these companies offer very little liability, which means that loved ones would have no authority to complain to and no legal right to any compensation should something go wrong.
Talking through your wishes with a regulated, experienced professional will help you decide if your affairs are ‘simple’ or ‘complex’, and they can advise you on any tax implications you may not have thought about regarding your estate. Whether you are single, married, in a civil partnership or living with a partner, writing new Wills or changing existing Wills with the appropriate advice, protects your assets and loved ones.
Lasting Powers of Attorney can also be complex, and going at it alone may mean that important details will be missed. Crucially, errors can also be made when drafting the forms, which can cause The Office of the Public Guardian (OPG) to reject it or make life unintentionally difficult for your attorneys in the future.
Expert Wills and Lasting Power of Attorney Solicitors
Whether you require our Will writing services or assistance with Lasting Powers of Attorney, our specialist Private Client solicitors are ready to help. We can also provide advice regarding The Court of Protection and the Mental Capacity Act. At Eric Robinson, our team is made up of experienced lawyers who are experts in their field. We understand this can be a challenging time for our clients, and we always deal with matters sensitively.
Regulated, expertise you can count on
Eric Robinson Solicitors is a regulated law firm. The majority of our specialist Wills and Probate solicitors are fully accredited members of STEP, the professional body for the Trust & Estate Professional Worldwide. STEP prides itself on the high standards and competence of its members. It makes sure that members behave professionally and ethically, comply with all relevant regulations and legislation, and keep their skills and competencies up to date.
We have solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington and Richmond-Upon-Thames.
