Wills & Mental Capacity
Making a Will, and keeping it regularly updated is key to staying in control and being clear about exactly what you want to happen to your estate after your death to ensure it’s inherited by the people you want to benefit.
It can include everything from how you want your funeral arranged to making sure your favourite charity is remembered and, crucially, helps avoid difficulties and confusion for your relatives and friends.
A properly drawn up Will also gives you the chance to take wealth preservation steps to structure your affairs, not only to minimise your liability for inheritance tax, but to maximise tax relief too.
Without a Will things can get a lot more complicated, slow and costly. Your estate will have to be distributed in accordance with the laws of intestacy which may mean your family don’t inherit as much as you want them to or, indeed, anything at all.
It’s particularly important when you’re cohabiting because, unlike married couples, you don’t have an automatic right to your partner’s estate if one of you dies without leaving a Will.
Lasting Powers of Attorney
Sadly, in these days of soaring dementia diagnoses, many experts believe that taking out a Lasting Power of Attorney and regularly reviewing it is as important as having a Will.
A Lasting Power of Attorney (LPA) is a way of giving someone you trust – known as your attorney – the legal authority to make decisions on your behalf if you lose mental capacity at some point in the future.
There are two types – an LPA for financial decisions and an LPA for health and care decisions.
There is a common misconception that your spouse or civil partner has an automatic right to deal with both these areas if you lose the ability to do so. This isn’t the case. Without an LPA they won’t have the legal authority to act.
It can include everything from how you want your funeral arranged to making sure your favourite charity is remembered and, crucially, helps avoid difficulties and confusion for your relatives and friends.
A properly drawn up Will also gives you the chance to take wealth preservation steps to structure your affairs, not only to minimise your liability for inheritance tax, but to maximise tax relief too.
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Without a Will things can get a lot more complicated, slow and costly. Your estate will have to be distributed in accordance with the laws of intestacy which may mean your family don’t inherit as much as you want them to or, indeed, anything at all.
It’s particularly important when you’re cohabiting because, unlike married couples, you don’t have an automatic right to your partner’s estate if one of you dies without leaving a Will.
Getting a job;
Buying a house;
Getting married;
Moving in with a partner;
Getting divorced;
Coming into money;
Having children;
Retirement;
For more information please see our Legal Guide – Why should I make or revise my Will?
It is highly advisable to use a solicitor even when making a straight forward Will. Additionally, if your Will is not straight forward we recommend using our personal Will writing service.
Reasons might include:
- Needing inheritance tax advice;
- Having been married several times with children from different relationships;
- The need to protect your estate from specific individuals;
- Wanting to set up specialist trusts for disabled loved ones;
- Having a foreign, agricultural or business property.
Charges start at £360 plus VAT (£432 inclusive) for a single Will and £575 plus VAT (£690 inclusive) for two similar Wills but we will be able to advise on costs more accurately once we know your specific requirements. We can discuss this at your free initial appointment.
Yes, if your Will is straightforward we offer an online Will writing service. This can be quicker than our normal Will writing service, and the form can be completed at a time to suit you.
Just complete the form and submit it to us. Our team of qualified experts will then draft a Will and send it to you for approval.
Once this is done, we will produce the Will for signing and witnessing (which you can do at our offices for no extra cost). Charges are £310 plus VAT (£372 inclusive) for a single Will and £475 plus VAT (£570 inclusive) for two similar Wills.
Executors are responsible for carrying out your wishes as expressed in your Will after your death. They will collect in your assets, pay any liabilities and then distribute your estate. You will need to check they are happy to take on this role.
Up to four executors, who can also be beneficiaries, can act at a time. At least two executors are needed if there is a trust to administer. You can choose family members but if you would rather your loved ones were not burdened with legal paperwork when they are grieving, or if your affairs are complex, you could choose to appoint a professional executor, like a solicitor.
Wards Solicitors’ are happy to act as your executor, either solely or with other named executors. Costs are charged on a time-spent basis together with a fee based on a small percentage of the value of the estate.
There is more information in our Legal Guide – Executors Duties.
Although you may never need it, a bit like an insurance policy, appointing an LPA can bring peace of mind knowing that if you are unable to manage your affairs in the future you have appointed someone you trust who can do it for you.
Once you are over 18 and have full mental capacity you can make an LPA at any time. It can be revoked whenever you want, as long as you still have mental capacity.
There is more information in our Legal Guides – Lasting Powers of Attorney-what are they?, Lasting Powers of Attorney: The Certificate Provider and Lasting Powers of Attorney- the role of the attorney.
Enduring Powers of Attorney (EPA) were replaced by Lasting Powers of Attorney (LPA) in October 2007. An EPA signed before that date is still valid and can still be registered but an LPA is more flexible and gives you the option of taking out either a financial affairs LPA or a health and welfare LPA or both. It also allows you to appoint replacement attorneys to safeguard your position further.
This is different to a Lasting Power of Attorney. It is a document in which the person creating the Power of Attorney gives one or more other people the legal authority to act on their behalf in relation to their financial affairs.
Importantly, this does not mean that you can no longer act for yourself but it can be helpful for a set period of time, perhaps when you are going abroad or are unable to act for yourself for some reason such as following surgery or treatment. This can be general or limited to specific matters – for example, your bank account but not your home.
An Ordinary Power of Attorney is only valid while you have mental capacity to make your own decisions. If you want someone to be able to act on your behalf if there comes a time when you don’t have mental capacity to make your own decisions you should consider making Lasting Powers of Attorney.
These are also know as Advanced Directives and we are often asked about them. Their purpose is to make your wishes clear about your medical care, should you for any reason be unable to communicate them in the future. They can allow you to refuse life sustaining treatment in advance. Some people gain peace of mind knowing they have made that decision in advance. If they were incapable of making such a decision in the future their loved ones would not have the burden of deciding whether or not to refuse life sustaining treatment.
The first step is to discuss it with your GP and have your wishes noted on your medical record. This will show that you were fully aware of the decisions you took, should a dispute arise in the future. You can change your wishes and review a Living Will at any time.
For more information, see our Legal Guide – Advanced medical decisions.
A civil partnership is a legally recognised relationship between two people of the same sex. A civil partnership only exists once it is registered. Once registered it confers the same rights and responsibilities as marriage.
In England and Wales, since 10 December 2014, same sex couples who have registered as civil partners can convert their civil partnerships to a marriage.
You may wish to enter into an agreement before a civil partnership, marriage or conversion. Agreements are often called pre-nuptial agreements and can put in place how you would want to deal with your finances and property if the relationship breaks down.
You also need to make sure that you have thought about all the legal implications where tax planning, Will-making, partnership agreements and any relationship breakdown provisions are concerned.
Getting married is one of those times it’s important to make or update your Will. Be aware marriage revokes a Will.
In addition to ensuring that your Will is up to date, you might want to consider a pre-nuptial agreement before you tie the knot.
Even if you are already married, it’s not too late to put some provision in place to protect your assets. A post-nuptial agreement can be structured to recognise changes in circumstances and to provide guidance on asset division should you decide to separate or divorce. We specialise in a number of wealth and asset protection methods to assist you, should this happen.
Definitely. Making a Will and keeping your Will up to date is always a good idea but when you are cohabiting, it’s vital. Unlike married couples, as a cohabitee you don’t have an automatic right to your partner’s estate if one of you dies without leaving a Will. Addressing this is key by drawing up a legal document which sets out exactly what you want to happen if one of you dies.
We have a specialist cohabitation team who can help you.
If a person has not made Lasting Powers of Attorney an application for a Deputyship Order or a one off decision by the Court may be needed.
If your relative lacks the necessary capacity to manage their financial affairs for themselves, they may also be unable to make gifts, update their Will or undertake tax planning.
If this is the case the Court of Protection can approve these things on their behalf. We can help you to apply to the Court of Protection for this, as well as take you through each stage of the legal process.
If you, or a relative, is unable to manage finances, but there is no Lasting Power of Attorney in place, it may be necessary for the Court of Protection to appoint a ‘Deputy’ to manage matters.
We can help you to understand this application process, including completing all the relevant paperwork, obtaining the necessary medical evidence, lodging the application, arranging any required insurance and implementing the Court’s orders, as well as acting as your Deputy, should you require it.
We can also help with the other elements of deputyship, including buying and selling a property, business management, employment of staff and basic accounting requirements.
Visit the Court of Protection service page for more information.