Month: April 2022

What is an Enduring Power of Attorney?

Prior to the introduction of the Lasting Power of Attorney (LPA) on 1^st October 2007 the Enduring Power of Attorney (EPA) was the legal document which could be prepared to allow you (the Donor) to appoint one or more people to deal with your financial affairs (known as Attorneys). 

• Provided that your Enduring Power of Attorney was made correctly and fully signed on or before 30^th September 2007 it remains valid and can be used by your Attorneys.

Unlike an LPA, an EPA can be used by your Attorneys, with your consent, without being registered at the Office of the Public Guardian (OPG) until such time as the Attorney(s) believe that the Donor has lost or is losing mental capacity.  At this time, they must stop using the EPA and it must be registered with the OPG to remain operative.  There are a number of forms and notices which must be completed and served as part of the registration process. 

The second major difference between EPAs and LPAs is that an EPA can only be used in relation to finances.  There are two types of Lasting Powers of Attorney, one which (like an EPA) deals with your financial affairs and a second one which deals with your Health and Welfare.  The LPA for Health and Welfare allows your appointed Attorney(s) to make decisions on your behalf if you are no longer capable of making them.  This can include choices about where you live, what care and support you receive, your everyday medical treatment or even whether or not you receive life-sustaining treatment.  By making an LPA for Health and Welfare you are ensuring that, no matter what happens in the future, your voice will be heard when difficult decisions are being made.

Reviewing Your Power of Attorney

Lastly, we would recommend reviewing your Power of Attorney, whether it is an EPA or an LPA, if you have money invested through an investment company or Independent Financial Adviser or if you would like to appoint replacement Attorneys to act if your first named Attorney(s) die or are no longer able to act.

If you have an Enduring Power of Attorney and would like us to review this with you to ensure that it is valid or you would like to talk to us about making a Lasting Power of Attorney for Health and Welfare, please feel free to contact one of our specialist Lawyers who will be happy to help.

If you are an Attorney acting under an Enduring Power of Attorney and are concerned that the Donor is losing capacity our specialist Lawyers are available to give you advice on how to move forward and to assist with the registration process.

You can contact us here to discuss your EPA or LPA legal needs further.

 

Solicitor Faiza Khalid provides a horror-story example of how children could fail to inherit from their deceased father.

 

Scenario

Charles Wilson had made a Will leaving everything to his partner Jean Smith during their 15-year relationship, they were unmarried, and Charles solely owned the property in which they lived.

Unfortunately, Charles did not update his Will once the relationship came to an end, despite being reminded on many occasions by his solicitors and family for many years. He had talked about making a new Will on many occasions but never got around to updating it.

Charles passed away suddenly following an unforeseen car accident, alas never having updated his Will.

The unfortunate implications of this were:

• As his Will still listed Jean Smith as his main beneficiary, upon his death his estate passed wholly to her, even though they ended their relationship seven years before.

• Charles’ children would not inherit anything from his Will, as he had left it all to Jean.

• Jean was by this time in another relationship (no children between them) and potentially could leave her estate to her new partner if they make mirror Wills together rather than any of the estate returning to Charles’ children upon her death.

• Alternatively, if Jean spends everything she had inherited from Charles during her lifetime, then there may not be anything for his children to inherit upon her death. Or, if she went on to have children with her new partner, then any inheritance of Charles’ children is likely to be compromised.

The only way Charles’ children could inherit anything in this scenario, is if Jean decides to give his children some of her inheritance, or if the children successfully make a claim against the estate. The family will have to not only deal with the stress of going to court but such scenarios also create animosity between families.

Outcome

I cannot stress enough the importance of not only making Wills but also updating them if your personal or financial circumstances change.

If you wish your children to inherit from your estate, you need to ensure your Will is always up-to-date and that they are listed as beneficiaries.

If you are unsure whether, or not, your Will requires updating following a change of circumstance, then please contact Lawson West Solicitors and one of our probate lawyers will be happy to advise you.

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