Nobody likes to think about the possibility of getting ill, understandably. But if the recent pandemic has taught us anything, it is that life can take a lot of twists and turns, and ill health can impact any of us, at any time. Every adult should have a few key documents in place to prepare for the unexpected and minimise the difficulties that loved ones can experience at these difficult times.
Your Will is your legacy and an opportunity to show your loved ones that you have thought about them, regardless of how much you own. Some of the things you can do with your Will include:
- Select guardians for minor children, rather than leaving the choice to chance.
- Set out funeral wishes, reducing the stress of ‘not knowing’ what you want for loved ones.
- Decide who should care for your pets and (optionally) provide a gift of money for their upkeep.
- Set out who should inherit your money and other assets.
- Reduce the amount of inheritance tax your estate pays, leaving more money for loved ones.
- Set up protective wrappers called trusts so those you care about have funds when they need it.
- Make provision for cohabitees, who otherwise would not benefit if you did not have a Will.
- Leave money to charities you care about (in some cases, this means your estate pays less tax).
We accumulate all sorts of bits and pieces during our lifetime, from valuable jewellery to sentimental trinkets. Codicils can be useful for passing on sentimental items to those who would be comforted by them.
Of course, if there are just one or two items, these could be included in your Will – but many people prefer to list personal items in a separate document. This is an addition to your Will, signed in the same way so that it is binding.
The benefit of using a codicil for lists of personal possessions is that it can easily be updated in the future, without having to make a whole new Will. You can change your mind about certain items, or add/take away items to reflect what you have bought/sold. However, it should not be used for very valuable items.
You can of course write the codicil yourself (I am always happy to provide clients with a template) or you may prefer it if I draft one for you. If you have any collections of items, I would suggest the codicil is drafted so that we can include some way for your chosen beneficiaries to select an item – without arguing!
Letter of Wishes
There are a number of reasons why you might want to draft a letter of wishes – for example:
- You want to explain why you have made certain decisions in your Will.
- You have excluded someone who otherwise might expect to inherit, and you want to set out your reasoning.
- You have created trusts and you want to tell those managing the trusts what you would prefer them to do.
- You have minor children and you would like to set out your wishes and hopes for aspects of their care and education.
- You want to suggest who might get certain personal possessions.
- You have a pet and you want to explain how you would like them to be cared for.
All of these are good reasons to make a letter of wishes – but some care is needed when writing such a letter. Letters have in the past been used in court cases involving the contest of a Will, as evidence of certain matters. Judges have noted where letters were particularly spiteful and this has been helpful to the claimant. It is therefore important that these letters are drafted carefully and factually.
You can find out more about Letters of Wishes here.
Property and Financial Affairs Lasting Power of Attorney
A Property and Financial Affairs Lasting Power of Attorney is a really useful document to have, regardless of your age or health. It allows you to nominate someone to help you with your finances at any time, with your permission. This might be anything from managing matters while you go on holiday to picking up your pension. It’s your choice whether the document can be used this way or not – you may instead prefer that it can only be used if you lose the ability to make decisions for yourself.
If you do lose ‘mental capacity’ to handle your own finances and you don’t have this document in place, someone close to you has to apply to the Court of Protection for a Deputyship Order. These are quite a bit more costly and can take some time to obtain. You also get no choice at this stage as to who applies, and you won’t be able to place any limits on the power they have.
Making a Finance Lasting Power of Attorney puts you in full control of who manages your affairs and in what circumstances. You can include instructions that your attorneys have to follow, alongside wishes to guide them. Crucially, you can appoint more than one attorney and limit their powers as you see fit.
Health and Welfare Lasting Power of Attorney
A Health and Welfare Lasting Power of Attorney (LPA) allows you to nominate someone to make decisions for you, should you lose ‘mental capacity’ in the future. Examples of decisions your attorney(s) can make are:
- daily routine, for example washing, dressing and eating
- medical care
- where you live
Clients sometimes think the Finance Lasting Power of Attorney is most important and the Health and Welfare LPA is less important. In my view, this is entirely wrong. If a client loses mental capacity and there is no Health and Welfare LPA in place, a family member or friend could apply to the Court of Protection for a Personal Welfare Deputyship Order but the court will be reluctant to grant it. In their view, there is no need for an order as most day-to-day care is covered under the Mental Capacity Act.
Courts are more inclined to grant an order if there’s doubt as to whether decisions will be made in your best interests. This might be for example because the family disagree about care – or because there is some dispute on a specific issue such as where you will live. Unfortunately this means most Personal Welfare Deputyship applications will be lengthy, complex and involve a hearing. This means more expense, not to mention friction within the family. Further, the person who applies to be deputy may not be who you would have chosen to make such personal decisions for you.
All of this can be avoided by making a Health and Welfare LPA in advance! This allows you to select a person or people you choose to make these decisions. You can also limit their powers and include both binding instructions and preferences.
A Living Will or ‘Advance Decision’ is a document recording in what situations you would like to refuse particular life-sustaining treatments. It can also be used to indicate that you would always prefer to receive such treatments in any circumstances. Either way, it sets out your wishes very clearly for your relations and doctors. This can relieve loved ones of the stress of having to make extremely difficult decisions at stressful times.
You can of course write an Advance Decision yourself if it satisfies a few requirements. However, if you are also making a Health and Welfare LPA, I would strongly suggest that both documents are prepared together professionally. There is some opportunity for overlap and it is essential that the documents do not contradict each other. You can find out more about Advance Decisions/Living Wills here.
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