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Q. What is a Will?

A Will, sometimes called a last Will and testament, is a legal document which allows you to arrange what happens when you die. For a Will to be legal, there are strict rules about how it is drafted and signed (or executed) and it is best to take advice from a professional to ensure your Will is valid, so that your wishes will be acted on after your death.

Q. What happens if I don't make a Will?

If you don't make clear what you want to happen after your death, the law will decide for you. The courts may have to appoint guardians for your children and your assets will be dealt with according to complex rules, called intestacy rules. If you don't make a Will, the people that you want to benefit after your death may lose out and there could be unnecessary payment of tax. It is vital for unmarried couples to make a Will as the law gives no automatic rights of inheritance. The term 'common law wife' is a myth and has no legal status. A Will is the only way to protect your partner in the event of your death if you are not married. Even married couples without a Will may face difficulties, because of the way the intestacy rules work.

Q. Can anyone make a Will?

If you are over 18 (12 in Scotland) and not mentally incapacitated, you can make a Will.

Q. What sort of things should be included in my Will?

You can specify what happens to everything that you own. This can include making provisions to minimise the impact of tax or nursing home fees.

You can also leave specific gifts to friends and family, for example jewellery, cars, or pictures or you can write a letter of wishes.

You might want to identify trusted friends or family members who could be guardians to your children if you die before they reach the age of 18 (16 in Scotland). You should discuss this with the people you choose first to make sure they are happy to be named as this is a serious responsibility to take on.

Finally, you might want to make arrangements for your funeral, and state for example whether you would like burial or cremation.

Q. What is a letter of wishes?

This is a letter which is kept with your Will that lists all the specific items you wish to give away, and who you wish to give them to. They can be useful, because they are much easier to change than a Will. However, they are not legally binding and rely on trusting someone to carry out your wishes, and so they may not be suitable for everyone. Your solicitor can help you decide what is best for you.

Q. How can I make sure my Will is valid?

Your solicitor will give you detailed advice on the signing and witnessing of your Will. If you don't follow these instructions carefully your Will could be invalid.

Q. Can I change my Will?

Yes, you can change your Will, either by completing a new Will which replaces (or revokes) your previous Will, or by executing a codicil. You should take legal advice before changing a Will.

Q. What is an executor?

Executors are the people chosen by you to make sure the terms of your Will are carried out after you die.

Q. Who should I choose as my executors?

Anyone over the age of 18 who is not mentally incapacitated can be an executor - most people name close family members. You can choose your solicitor to act for you as an executor. There will be a charge for this service, which is paid by your estate, and your solicitor will be happy to discuss this with you.

Q. Can I cancel a Will?

Yes, you can cancel (revoke) a Will but it has to be done in a specific way to be legal, and you should always take legal advice before doing so. If you revoke a Will, it should be replaced by a new Will, otherwise the intestacy rules will apply which may produce a totally different outcome from the one you intended.

Q. Where should I keep my Will?

You can keep your Will in any safe place, but we recommend choosing your solicitor's safe Will storage facility, to guarantee that your Will is safe, and available when it is needed. You should never keep a Will in a bank safe deposit box, because they can only be accessed by executors who must be able to show the bank the original Will in order to prove they are authorised to access the box, and so this can cause a great deal of difficulty.

The following questions only apply to England, Wales & Scotland

Q. What is a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) (or Power of Attorney in Scotland) is a legal document which allows you to appoint someone you trust to make decisions for you, when you are unable to make decisions for yourself. They are known as your Attorney. Anyone over the age of 18 (16 in Scotland) who is not mentally incapacitated can make an LPA. There are two types of LPA , Property & Finance and Health & Welfare.

Q. What is a Health and Welfare LPA ? (Welfare PA in Scotland)

This type of LPA allows you to appoint someone to make decisions about your health and welfare, if you lack the mental capacity to make those decisions for yourself. The types of decisions your Attorney might have to make could be about your medical treatment or even refusing certain medical treatment, or the type of long term care you should have. It is important that you have the proper advice when you draw up your LPA and that you choose the right person to be your Attorney and make those decisions. This type of LPA can only be used if it has been properly registered with the Office of the Public Guardian, and when you are proven to have lost the mental capacity to make or communicate your own decisions.

Q. What is a Property and Finance LPA ? (Continuing PA in Scotland)

This type of LPA is designed to allow you to appoint someone to deal with your property and financial affairs. An attorney appointed by a Health and Welfare LPA does not have these powers unless you have also appointed them under a separate Property and Finance LPA. You should make sure that you have taken proper advice, and chosen the right person to be your Attorney. A Property and Finance LPA can be used at any stage once it is registered – you do not have to have lost mental capacity, but generally they are used for people who have lost mental capacity. It could be useful if you intend to spend a long time out of the country, or if you begin to find dealing with your affairs more difficult e.g. because you find getting about more challenging and your solicitor can advise you if your Attorney should have power in these circumstances.

Q. Who should be my Attorney?

Your Attorney should be someone you trust to make the right decisions about your financial affairs, or your welfare. Usually it is a close family member, but the choice is completely up to you. Your solicitor can help you to make that choice. Once you have decided, you will need to discuss your decision with your chosen Attorney, as they must sign the application form to confirm that they agree to act.

Q. Can I appoint more than one Attorney?

Yes, and often it is a good idea to have more than one Attorney in case circumstances change and one of them is not able to act, when the time comes.

Q. When can my LPA be used?

A Property and Finance LPA can be used at any time once it has been registered. A Health and Welfare LPA can only be used once you are proven to lack the mental capacity to make the particular decision that needs to be made. This is usually settled between your Attorney and your medical practitioner, but if there is a dispute, the the Public Guardian would have to become involved.

Q. What does 'lacking mental capacity' mean?

This is decided in each case by competent medical professionals, in conjunction with your Attorney. It is a complex area because sometimes people can clearly have the capacity to make some decisions, but are not capable of making others. Your solicitor can advise you about this further.

Q. Who is the Public Guardian?

The officer and department of the government which has responsibility for protecting vulnerable and at risk individuals and for administering and registering Lasting Powers of Attorney.

Q. What safeguards are in place to protect me?

There are safeguards to make sure that you have not been pressured into giving someone power of attorney. These are a critical part of the process of making and registering the LPA and your solicitor can explain more. As an example, part of the form must be completed by a 'certificate provider' who can be your solicitor or your doctor, or other similar person. It cannot be your Attorney or a member of your family. The certificate provider must ensure that you understand the powers you are giving, and have not been pressured in any way, and sign the form to confirm this. In addition, a Health and Welfare LPA cannot be used unless you have lost mental capacity.

You can specify exactly what powers your Attorney can and cannot have in your application form – you can discuss these with your solicitor.

Q. How do I make an LPA?

An LPA is made by completing the appropriate forms, and having them signed and witnessed by all the relevant parties. The forms are then submitted to the Office of the Public Guardian for registration, together with the registration fee.

Q. Why do I need to register my LPA?

Generally it is advised that the registration is completed at the time, so that the power can then be used as soon as it is needed. Immediate registration also has the advantage that your Attorney will be saved the extra work, delay and expense of registering the power on your behalf before it can be used, at a time when urgent and important decisions may have to be made. Your solicitor can advise you further about the risks of not registering your LPA immediately.

Q. Can I change or cancel my LPA?

Yes, but formal procedures must be followed, and your solicitor can advise you further about this. In certain circumstances, e.g. when you die, or if you become bankrupt, the LPA automatically ceases.

The following questions only apply to Northern Ireland

Q. What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney (EPA) is a legal document which allows you to appoint someone you trust to make decisions or take actions for you, when you are unable to act for yourself. They are known as your Attorney. Anyone over the age of 18 who is not mentally incapacitated can make an EPA.

Q. When does an EPA take effect?

The EPA is effective as soon as it is created, but your Attorney cannot use the Power until it has been registered with the High Court (Office of Care & Protection). This can't happen until your Attorney believes you have become mentally incapable of acting for yourself. You will be notified if your Attorney makes such an application to the court.

Q. Can my Attorney do anything they like?

No, they can't. First of all, you can specify what powers you want to give your Attorney, and your solicitor can give you advice about this. Secondly, it is the High Court's job to ensure that your Attorney only acts in your best interests.

Q. Can I change my mind?

Yes, you can change or cancel your EPA at any time, as long as you have the mental capacity to do so. You should take advice from your solicitor if you are considering changing your EPA.

Q. Who should be my Attorney?

Your Attorney should be someone you trust to make the right decisions about your financial affairs, or your welfare. Usually it is a close family member, but the choice is completely up to you. Your solicitor can help you to make that choice. Once you have decided, you will need to discuss your decision with your chosen Attorney to ensure that they are comfortable with this responsibility.