Estate Planning

Resources for Grandpals

As your older loved one ages, you should make sure that arrangements are in place to take care of any inheritance they may have to share after they pass away. When someone close to you passes away, there are so many things to sort out and emotions are on a high. Organising the legal side of things before this happens will take one thing off your mind during those difficult times and give you more room to grieve.

Equally as important, is appointing a person to make decisions for them if they were to become incapable of doing so themselves. If your older relative becomes mentally incapable, appointing someone to make decisions for them before that time comes can give you and your relative peace of mind that things will be taken care of during that period of their lives.

In this article, we’ll take a look at why they should make a will and some important information to note outlined by Citizens Information, and essential points to note on appointing power of attorney.

Making a Will

What is it?

A will is a witnessed legal document which is drawn up by someone before they pass away to outline what they would like to happen to their estate after death.

Someone’s ‘estate’ is any possessions or money which is left following death. After expenses and debts are paid, the remaining estate is distributed among what are known as ‘beneficiaries’- the people who receive something from the will.

How does it work?

Generally speaking, they are free to distribute their estate as they wish before they die. However, it should be noted that if they have a spouse/civil partner then they are entitled to a legal right share which is one half of their estate if they have no children and one third if they do have children. Children, however, do not have a legal entitlement to inherit unless no will has been made.

When they make their will, they appoint an executor or executors to ensure that their last will and testament is carried out after they pass. Their executors can gain from the will, they don’t need to be independent to them.

Why should they have one?

Making a will ensures that your relative’s estate will be distributed among their dependents as they wish after they pass away. If your loved one doesn’t have a will, their estate will be distributed by an administrator according to law. Their estate is left to those who survive them after death and who gets what is according to their relation.

For example, if they have no children but a surviving spouse or civil partner then their whole estate, after debts and expenses, will go to them. However, if your older relative does have children and a spouse/ civil partner then two thirds of the estate goes to their partner and one third is split equally among their children, or their grandchildren if their child too has passed away.

Don’t think that making a will is only something which should be done by someone on death’s door. Wills should be made by everyone to avoid complications and legal proceedings for your loved ones after you die. You can make as many as you like throughout your lifetime, so as your circumstances change you can change your will accordingly. It’s important to note here that the only will valid after death is the most recent one made and every time a new will is made a statement revoking all previous wills should be included.

How can they make one?

Your older relative can write the will themselves, or have a solicitor do it for them. It’s recommended to employ the services of a solicitor as this is a legal document which will need to be drafted correctly and meet certain requirements in order for it to be valid.

It’s also advisable to use the services of an independent solicitor who has no connection to your loved one’s beneficiaries, as their wishes could later be challenged if it’s thought they made their will under any sort of external pressure.

To make a valid will, certain requirements must be met:

  • It must be in writing.
  • They have to have been sound of mind when writing it. In other words, they can’t be suffering from any mental conditions such as delusions or insane suspicions. If they do suffer from a mental condition such as these, then they must have evidence, from a doctor for example, which proves they were competent at the time of making their will.
  • They must be over 18 or have been married.
  • They must sign or mark the will at the end.
  • This must be witnessed by 2 people at the same time, who also sign the will in your relative’s presence.
  • These 2 witnesses, and their spouses/ civil partners, cannot be people who will gain from your older loved one’s will.
  • If they cannot sign or mark the will themselves, if they are physically disabled for example, then they can appoint someone to sign or mark the will for them in their presence and the presence of their 2 witnesses.
  • If they decide to change anything in the will at a later date, the same requirements for writing the original will must also be met.

There is no fixed format to which a will should follow, but there is certain information they should include:

  • Their name and address.
  • The names and addresses of their executors (the people you want to ensure your wishes are carried out).
  • If this is not their first will to make, a statement cancelling or revoking all previous wills.
  • A list of all their possessions and money, and who they want to get what.
  • A residuary clause- this states who should get the remainder of their estate if it hasn’t been specifically outlined in the contents of their will.
  • Dated and signed by your older relative and their 2 witnesses.
  • An attestation clause is advised- a line which states "Signed by the testator in the presence of us and by us in the presence of the testator" with the date and signatures of your loved one and their witnesses underneath.
  • The ‘testator’ (male) or testatrix (female) is the person making the will.

Power of Attorney

What is it?

Power of attorney is when your older loved one entrusts someone (then known as their attorney), when they’re of sound mind, to make decisions for them if they’re abroad, not there to make the decision themselves or become mentally incapacitated as a result of illness.

How does it work?

As outlined by Citizens Information, power of attorney comes in two different forms- a general power of attorney or an enduring power of attorney.

General Power of Attorney

Your relative can authorise someone else to carry out a task for them, like sell a property or manage their money, if they’re out of the country or not there to do so themselves. It must be in writing and signed by your loved one in the presence of a witness, but does not necessarily need to be drawn up by a lawyer. Although, it’s advisable to do so.

General power of attorney is legally binding unless they decide to withdraw it or if they become mentally incapacitated to make decisions, they enter a civil partnership or get married, or if they’re declared bankrupt.

Enduring Power of Attorney

Unlike a general power of attorney, an enduring power of attorney (EPA) must meet certain legal requirements in order to be effective. Your older relative appoints someone to take care of their estate if they should become mentally incapable of doing so themselves. They must also notify at least 2 people, one of which must be their spouse/ civil partner, or a child if they don’t have a spouse/ civil partner or if this does not apply, any other relative.

Neither of the 2 people notified of their intention to appoint power of attorney can be the attorney themselves.

This is a legal document which must involve their solicitor and doctor, and must be made when they are of sound mind. The enduring power of attorney only comes into effect when/if they become mentally incapable.

Why should they have an EPA?

If your loved one is not capable of making decisions for themselves and has not appointed a power of attorney, or if their assets and property are not jointly owned then they can be frozen and can’t be used by anyone else.

Enduring Power of attorney is equally as important when it comes to making personal care decisions like handling social welfare and benefits, what sort of rehabilitation they should receive, diet and where and who they live with.

Ultimately, it’s down to them how much power they want to give their attorney and what type of decisions they would like the attorney to make. They can give someone the power to only make financial/ legal decisions, personal care decisions and include or exclude any decisions they wish.

If the attorney has the power to make care decisions, then they must always be made in the best interests or your older loved one and family members and carers must be consulted on the decision making process. The attorney, does not however, have the power to make decisions regarding surgery if the patient is suffering from dementia.

Giving such power away can seem daunting and you want to make sure you’re loved one is protected and their best interests are always at heart, so It’s important to note that the courts have an extensive supervisory role to make sure that their wishes are carried out as they intended and that they’re not being exploited.

How can they appoint an Enduring Power of Attorney?

As this is a legal document, they will need to go to a solicitor to draw the contract up. They can appoint an individual person to be their attorney or a trust corporation.

If your loved one appoints an individual, they must be over 18, have no fraud or dishonesty convictions, must not have been declared bankrupt or been disqualified under the Companies Act. If they appointed their spouse/ civil partner, but later divorced then the enduring power of attorney is no longer valid.

If they live in a nursing home facility, then they can’t appoint said nursing home as their attorney or anyone working for the nursing home unless they happen to be their spouse/ civil partner, child or sibling.

We know that such topics can be difficult to face as our older loved ones age and that it’s not something we want to focus on while they’re still of sound mind and body, but making sure that important life decisions will be made in their best interests as they require more care and that systems are in place for their estate after they pass away will certainly make this stage of life that bit easier for both you and your loved ones.

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