Frequently Asked Questions
Private Client FAQsLasting Powers of Attorney
What is meant by lasting power of attorney?
A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to make decisions and handle your affairs in the event you are unable to do so due to incapacity.
Do I need a lasting power of attorney if I am married?
Yes, being married or in a civil partner, does not give your spouse/civil partner the authority to make decisions for you if you lack capacity. They will need to apply to the Court of Protection to become your deputy, a lengthy and expensive process.
Can I register my own Lasting Power of Attorney without a Solicitor?
Whilst you can apply to register your own LPA, as the LPA is a powerful legal document it is advisable to seek legal advice on its application and to ensure its correctly completed. No amendments can be made to an LPA after its has been signed, if there are any errors on registration then the document will be returned, unregistered by the Office of the Public Guardian and will need to be re-signed and registered, often involving a further fee.
Do I need a power of attorney if I have a Will?
Yes, the LPA allows your chosen attorneys to make decisions on your behalf while you are alive. A Will only comes into effect after death whereby your Executors are tasked with the distribution of your money and possessions.
When should you make a lasting power of attorney?
You can make an LPA at any time unless you have lost mental capacity to do so. So it is essential to put one in place to make sure you are covered should the worse happen.
Wills
Can I write a Will without a solicitor?
Whilst possible to write your own will, there are laws governing in the interpretation, construction and validity of Wills. Failure to understand what makes a valid Will could mean that your own Will may be invalid or certain gifts may not affect as you would wish.
Can an executor be a beneficiary?
Yes, it is quite common for an executor to also be a beneficiary, however you need to ensure that there will be no conflict between executors and beneficiaries.
What happens if I don’t have a Will?
If you do not have a will, the Intestacy Provisions will govern who your estate passes to and who will be entitled to administer the estate, your property may end up in the hands of people who you would not wish to benefit.
Can I dispute a Will?
A Will can only be disputed for certain reasons. It can be alleged that the Will is invalid for some reason i.e. the Will maker lacked capacity when he made the Will, he did not know or approve the contents of the Will, or the Will was made under fraud or duress. If there are no issues regarding the validity of the Will a disappointed beneficiary may be able to make a claim under the Inheritance Act.
What is the Inheritance Act?
The Inheritance Act allows certain categories of people to make a claim should the Will or Intestacy Provisions fail to leave them reasonable final provisions, the categories are: spouse, ex-spouse, child, step-child, someone who has cohabited with the deceased for a minimum of two years or someone who has been maintained by the deceased for a minimum of two years.
Do I need a Will if I am Married?
Yes, many people assume that their spouse will inherit everything if they do not have a will. This is not always the case, especially where children are involved. If you have an existing will before you were married, this will have been revoked by marriage.
What are my rights as an unmarried parent?
As an unmarried parent, you have no rights to the estate should the other parent die. You may be able to claim under the Inheritance Act if you can show that the deceased parent was maintaining you.
Court of Protection
Who are the Court of Protection?
The Court of Protection is a court established under the Mental Capacity Act 2005 which has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.
Do you need a solicitor to apply to the court of protection?
Whilst you don’t need a Solicitor to apply to the Court of Protection, as the process can be complicated and prolonged it is best to have legal advice and guidance.
How long does a court of protection order take?
This very much depends on the type of order being applied for, whether permission is required and if anyone opposes the application. An application to become a deputy may take up to a year, however the court will consider interim applications required to help the person who lacks capacity fairly quickly.
Who can decide mental capacity?
Mental capacity is decision specific, someone in a coma will clearly lack all capacity where as someone with dementia may have capacity to make some decisions but not others. All reasonable steps must be taken to assist a person in making the decision. If there is any doubt then a professional such as a GP or Independent Mental Capacity Assessor should be instructed to carry out an assessment.
Can you appeal a court of protection order?
You may be able to challenge a decision from the Court of Protection by applying to the Court of Appeal, but you may need permission. If you want to challenge a decision, you should get legal advice from a solicitor to help you work out whether you are likely to get legal aid for your challenge and how likely you are to win your case as it can be very expensive and stressful.