wills

Enduring Powers of Attorney – All Your Questions Answered

/ Karen / 1 Comment

 

elderclientNone of us like to think of the possibility as we grow older of getting too ill, either mentally or physically, to manage our property and finances ourselves.

We can all easily assume that, somehow, we will be able to manage our affairs throughout our lives – that we will always, for example, be physically capable of getting to the bank or post office to withdraw money or pay bills, or that we will always be mentally capable of understanding and signing documents connected to our property.
Whilst many of us will throughout life be able to look after our affairs as independently as ever, the sad truth of the matter is that for others, the ability to be physically or mentally capable of managing property or finances can be unexpectedly lost through accident, injury or the onset of illness such as dementia.

It is therefore reassuring to know that there are things that you can do to help you plan for the future should the worst happen.  You can plan for these possibilities by taking sensible precautions whilst you are mentally and physically capable of doing so.

 How? 

By executing a document known as an Enduring Power of Attorney (EPA)

So, what exactly is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Deed by which you can give authority to another person (your “Attorney”) to act on your behalf in relation to all or specified property and financial matters.

An EPA is not a Will.  A Will is only relevant after your death.  An Enduring Power of Attorney deals with the management of your property and finances when you are alive, but unwell.

Do I lose control when I sign an EPA?

By executing an EPA, you are potentially sharing control of your property and finances with your Attorney.

You can however state that the EPA is not to come into operation unless you become mentally incapable.   Some people prefer to keep the EPA restricted in this way.  Other people choose not to, as they wish their EPA to be effective if they remain mentally capable but become physically incapacitated and unable to manage their banking etc.  This is an important choice which should be carefully considered before executing an EPA.

Who should I appoint as my Attorney?

You can technically appoint anyone to be your Attorney however it is important that you ensure that you appoint someone that you trust completely, whether a family member, friend or professional advisor.   An EPA gives your Attorney complete control of your property and finances (unless restricted) and so you must be confident that your Attorney will have your best interests at heart.

It is also important that you discuss your intentions with any Attorney you intend to appoint as an Attorney must accept such an appointment, and sign the EPA form after you.

Can I have I have more than one Attorney?

Yes, indeed it is often practical to have more than one Attorney. If you choose to appoint more than one Attorney, you must decide whether they can act independently of each other or whether they must always act together.  This choice is not entirely straightforward you may need legal advice to guide you in this regard.

What Powers would my Attorney(s) have?

Subject to the terms of the particular EPA, an Attorney has wide authority to stand in the Donor’s shoes and make all decisions about your property, income and finances, which you could have made, with a few exceptions.

An Attorney cannot do the following:-

  • Make a Will for you
  • Sign an affidavit
  • Perform any act which you were authorized to do because of personal appointment, personal skill or a statutory direction.
  • Make medical or personal welfare decisions for you.
I don’t have assets or property of my own – is there any point in signing an EPA?

Regardless of whether you own property or have assets, someone will need to manage your pension or benefits if you cannot do so yourself. This will be made much easier with an EPA in place.

All of my assets are jointly owned with my spouse/partner – would I still need an EPA?

If it became necessary for your jointly owned house to be sold and you were not mentally capable of signing the deeds yourself, only a person with authority (such as an Attorney) can sign on your behalf.  One joint owner cannot sign deeds for all co-owners.

Often, joint bank accounts are frozen if a bank becomes concerned that one party is no longer capable and there is no EPA is in place. This can cause cash flow problems for all of the account holders. This can be avoided with an EPA.

What responsibilities would my Attorney have?

At all times, your Attorney must act in your best interests. Your Attorney must apply to register the EPA with the High Court if you have become or you are becoming mentally incapable of managing your financial affairs.  During the registration process, the authority given to your Attorney is effectively “on hold” until the process has been completed and the original Deed is issued bearing the court registration stamp.

Your Attorney is obliged to give you formal notice if steps are being taken to register your EPA.  As an added protection, your Attorney is also obliged to give notice to a number of your next of kin.  You, or family members notified can lodge an objection with the High Court, if you or they consider the registration of the EPA to be inappropriate.

Can I change my mind and revoke an EPA?

Yes, you can revoke an EPA while you remain mentally capable, and your EPA has not been used.  You should give notice of revocation to your Attorney.  However, once an EPA has been registered, it can only be revoked by the High Court.

If I recover my capacity, who is in charge of my affairs then?

There is a procedure to de-register an EPA which would allow you to resume control of your affairs yourself.  It would be important to seek legal advice to guide you on this process.

Is it expensive to make an EPA?

No. Legal costs are modest as the paperwork is not complicated once the important decisions have been made with professional help.  In fact, it would be much more expensive NOT to have an EPA should you have the misfortune to lose your capacity.

LJohnstonThis article was provided by LINDA JOHNSTON, Partner at FRANCIS HANNA & CO SOLICITORS.  Linda has a significant experience in the areas of FUTURE PLANNING.  For further information on this area of law, feel free to CONTACT US HERE AT LIFE LAW NI or contact Linda at lj@fhanna.co.uk  

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Statutory Wills

/ Karen / Leave a comment

wills

Guest Blog by Linda Johnston,  Partner , Francis Hanna & Co

Making a Will is one of those things on everyone’s ‘To Do’ list. We all mean to make one but many of us never seem to get round to it.

Putting your own Will aside, have you ever considered whether a Will may need to be made on behalf of someone you know who does not have the mental capacity to make one for themselves??

It sounds like an odd notion – making a Will for someone else. However, if someone has insufficient appreciation or understanding to make a Will, the Court can consider an application for a Will to be made on that person’s behalf – this type of Will is known as a Statutory Will.

Examples of people who may require a Statutory Will to be made on their behalf include the following:-

  • People who may have lost mental capacity to understand and manage their own affairs (for example, due to degenerative illnesses such as Alzheimer’s disease or dementia)
  • Those with a learning disability who do not have the mental capacity to understand the implications of making a Will
  • Those who have suffered a severe brain injury and have become mentally incapable of managing their affairs

Why make a Statutory Will?

The basic purpose of making any Will for most people is to allow them the freedom to leave any possessions, property or money that they have when they die to whoever they choose.

In order to make a Will, a person must understand the purpose of making a Will, and how their assets would be distributed to family or friends upon their death.   A Will is therefore only valid if it is made by a person who has the mental capacity to understand what they are doing.

In cases where this mental capacity is lacking, making a Statutory Will can help to  avoid the scenario where a person’s assets are given to someone they would not wish to benefit.  For example, an unexpected inheritance, personal injury award or other change of circumstances may leave a person with significant assets.   If that person is not mentally capable of making a Will,  their assets are at risk of being distributed upon their death to family members who perhaps they are not in touch with or who they would not have wanted their assets to go to.

A person may not have sufficient mental capacity to make a Will, but may be capable of other financial decisions.   Alternatively, family members of the person without mental capacity to make a Will may believe it to be in that person’s best interests that they have a Will stating how their assets are to be distributed on their death, for tax planning purposes for example or to avoid a situation whereby their assets are distributed unfairly.

How do I make a Statutory Will on behalf of someone else?

In order to have a Statutory Will made, an application needs to be made to the Court. The Court office that deals with applications is called the Office of Care and Protection. The procedure can be quite complex and therefore it is recommended that anyone making an application of this nature seek legal advice.

Many people are unaware of this opportunity.  I have used Statutory Wills for a number of clients to protect their assets and to avoid obvious injustice.

If you would like any further information on this area, please do not hesitate to contact me on the form below or alternatively by email on lj@fhanna.co.uk

Linda

LJohnstonLinda is a Partner in Francis Hanna & Co Private Client department specialising in estate planning, long term care issues and disputed wills. She was the first NI member of Solicitors for the Elderly, a network of specialist and passionate lawyers focusing on the increasing needs of our ever ageing population.

Linda is also a member of STEP (Society of Trust and Estate Practitioners) and is a frequent speaker to parent and carer groups on the subject of future planning to protect the interests of vulnerable and disabled family and friends.

 
 

Making a Will

/ Karen / 1 Comment

Ensuring your wishes come true once you’re gone

We all know the saying, ‘Life is what happens when you’re busy making other plans’. However, with the hustle and bustle of everyday life, it is sometimes difficult to make any plans at all!

Why should I make a Will?

Few people would deny the sense in making a Will, and most of us have at one stage or another considered it, but many of us just don’t get round to the task. Everyday life seems to get in the way and besides, talking about death is a little depressing don’t you think?! Well, there is nothing morbid about making a Will – you can rest assured that it does not hasten the event! In reality, taking a little time to plan how you would wish your assets to be distributed upon death and knowing that your family and children have been properly provided for as per your wishes goes some way to relieving the stresses and worries that many of us may have about death, particularly as we get older. Essentially, by making a Will, you control who inherits and how much of your estate each of your chosen beneficiaries receive.

What if I have not made a Will?

If you have not made a Will, then laws made many years ago (which many people feel are now outdated) direct who the recipients of your estate will be. In today’s world, the patterns of family life are much more diverse and a family may include the following:-

  • Children by more than one partner
  • Step-children
  • Long-term unmarried partners.

If you have not made a Will, these are all complicating factors. For example, if you are unmarried but have a long term partner and child together, your child will inherit your estate if you die without a Will and NOT your partner. Yet most unmarried couples would wish, and expect, that their partner would be first in line to inherit, and their child second. If married, your partner moves to first in line but does not necessarily take all of your estate. Therefore, if you wish to have the reassurance that each and every member of your family is accounted for upon your death, making a Will is the best option for you.

Planning ahead can save you money and heartache, and most importantly will ensure YOU are in control of what happens after your death.

For more information on how to make a Will, please contact Karen or alternatively leave us your comments below. 

 

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