Legal: Wills, Power Of Attorney and Living Wills
On this page, we explore the legal avenues available to you to put you in control of your rights and ensure your wishes are respected should you die or lose the mental capacity to no longer look after your financial affairs or make decisions on your health and welfare.
What is a Will?
A will puts you in control of what happens after your death and it enables you to:
- decide what happens to your money, possessions and property after your death
- plan your funeral
Why is it important to make a will?
It is important for you to make a will whether or not you consider yourself wealthy, to ensure your wishes are carried out when you die. Having an up to date will can also help ease distress for loved ones and minimise disputes after your death.
A will is important because:
- If you die without a will, your assets will be distributed according to “the intestacy rules” which are certain rules that dictate how your money, property or possessions will be shared after your death. This may not be the way that you would have wished your money and possessions to be shared.
- Unmarried partners and partners who are not in a registered civil partnership cannot inherit from each other unless there is a will.
- If you have children, you will need to make a will so that arrangements for your children can be made if either one or both parents die.
- Taking advice before your will is made could reduce the amount of inheritance tax payable by your loved ones after your death.
How often should I update my will?
Solicitors For The Elderly (SFE); a membership body representing over 1,600 solicitors specialising in working with older and vulnerable people; recommend updating your will every five years or after a major life event that impacts you or your loved ones such as a marriage, divorce, birth or even a death.
Is Power of Attorney included in my will?
No, a Power of Attorney is not included as part of your will.
A will is a legal document that says, “When I die, I want that to go to this person.”
A Power of Attorney document says, “If something happens to me, I want this person to help me make decisions about X or Y”
What is a Power of Attorney?
A Power Of Attorney is a legal document that allows someone to make decisions on your behalf if you are no longer able to or if you no longer want to make decisions for yourself.
Different Types of Power Of Attorney
There are different types of power of attorney and you can arrange more than one depending on your circumstances.
Ordinary Power Of Attorney
This covers decisions about your financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period such as a hospital stay or holiday or if you find it hard to get out and you want someone to act on your behalf.
Lasting power of attorney (LPA)
A lasting power of attorney (LPA) allows you to nominate people who you trust to make decisions on your behalf if you no longer have mental capacity to make decisions.
Without an LPA, if you lose mental capacity to make decisions, you might have no control over who is making decisions for you. There are two types of LPA the first covers your financial decisions and the second covers your health and welfare decisions – you may need both.
Your local citizen’s advice office or your solicitor will be able to advise you about which LPA you will need based on your circumstances and needs and help safeguard you from any potential misuse of the LPA.
What is a living will?
An advance decision, also known as a living will allows you to express your wishes to refuse medical treatment in the future (even if this might lead to your death), in case you later lack mental capacity to make or become unable to communicate decisions for yourself.
The legal name is an Advance Decision to Refuse Treatment and they are legally binding as long as they meet certain requirements. This means that is a healthcare professional knows you have made an Advance Decision to Refuse Treatment, then they must follow it.
Further information
Compassion for Dying
Compassion for Dying have a fantastic website which gives you guidance on how to prepare for the end of life – they help you talk about it, plan for it and how to record your wishes through not only a living will but also DNR forms, Advance Statements and more. You can visit their website here for more information.
Citizens Advice
Your local Citizens Advice centre may also be able to offer help and guidance on wills and power of attorney.
If you live in Stoke-On-Trent or North Staffordshire, you can call Citizens Advice Staffordshire North and Stoke advice line on 0808 2787876. At the time of writing this webpage, their face to face drop in centres in Newcastle-Under-Lyme, Kidsgrove, Hanley and Bidulph are suspended due to the COVID-19 pandemic however please visit their website for up to date information about their face to face clinics.
Please note, the information above is to help give you a basic understanding of wills, power of attorney and living wills in England and Wales and is provided for informational purposes only and should not be constructed as legal advice. The information above does not take into account individual circumstances and may not reflect recent changes in the law. Do not act or refrain from acting upon this information without seeking specific, personal legal advice.