Do I need an LPA if I have a Will?
Posted on 29th August 2023 at 09:37
This is a question that we often get asked by clients who mistakenly believe that they need either a Will, or an LPA. This is not correct.
Everyone would benefit from putting in place a Will, and LPAS in respect of property and finance and health and welfare.
Research shows that only around 45% of adults in the UK have made a Will. This is a worrying statistic. Even more worrying is that four in five UK adults do not have a Lasting Power of Attorney!
What are the key differences between Wills and LPAS?
Wills and LPAS are total opposites in the sense that your Will takes effect upon your death, and LPAS are to be used during lifetime and cease to be valid upon your death.
Upon your death, you will likely wish for all your assets to be distributed between your loved ones, however during your lifetime, you need to ensure that you are keeping sufficient assets in order that you can live comfortably.
If there comes a time when you can no longer manage your finances then this is where your chosen attorneys step up, using their authority under the LPA.
Just because someone is named as an executor in your Will, they do not have any authority to manage your affairs during your lifetime unless you expressly give them this authority in the form of an LPA.
As LPAS cease to be valid upon death, the fact that someone was your attorney during your lifetime does not give them the automatic right to administer your estate once you have passed away.
Are LPAS only valid once I have lost capacity?
There are 2 types of LPA, one for Property and Finances, and one for Health and Welfare.
The property and finance LPA can be used as soon as the same has been registered (with your consent). This makes the LPA incredibly useful in times of ill health or bad weather when you are not able to go to the bank yourself.
The health and welfare LPA is slightly different in that the same can only be used once you have lost capacity, and therefore for health and welfare decisions your attorney’s can only act when you are unable to make the decision.
You are of course able to communicate your wishes with your loved ones whilst you have capacity to do so, and these conversations can often assist attorneys who are faced with making health and welfare decisions on your behalf.
By appointing an attorney, you do not lose control of your own decisions, your attorneys are obliged to involve you in all decision making whilst you have mental capacity.
The Office of the Public Guardian regulate all attorneys and are there to safeguard you as the donor of the LPA.
Can my attorney and executor be the same person/people?
It is very common for people to appoint the same person/people to be their executors and their attorneys, as it is vital that for both these roles you have chosen those that you trust implicitly.
Having your attorneys as your executors can often ease the pressure on your executors when they are administering your estate as someone that has acted as your attorney will have a good understanding of your financial position and the assets which make up your estate.
Who can I appoint as my attorney?
You can appoint anyone over the age of 18 to be your attorney. Whilst there is no maximum number, we would recommend a maximum of 4 attorneys as to have more than 4 people can often lead to practical difficulties when the attorneys are carrying out their duties.
The majority of people choose to appoint a family member as their attorney. Whilst you can appoint your spouse/partner, adult children are often best placed to act as your attorney given the generation gap.
Does my attorney have to live in the UK?
There is no requirement for your attorney to live in the UK, however from a practical perspective you should ensure that your attorney is able and willing to carry out their duties.
If you have children living abroad, and children living in the UK, you may wish to appoint all your children on a joint and several basis so that they can all act, and that nobody is left to feel excluded, and those that are local/better able to help around their own work commitments etc can assist with more of the day to day matters, where as for bigger decisions, all of your attorney’s could be involved.
Give us a call on 0113 200 7480 and speak to a member of the Private Client team who will be happy to assist you with the preparation of your Will or LPA and to answer any questions you may have.
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