Review: Wills, Lasting Powers of Attorney and Advanced Directives

A review of our meeting in March 2021 

Ann, who is both a member of the SELHuG Committee & a practising solicitor, opened her presentation with the supposedly obvious statement that ‘When you’re dead, you’re dead’. However, she then added that many of her clients forget that when they ask for her assistance is writing their wills. They seem to believe that you can control what happens beyond the grave. You can’t. 

She then teased us with a quiz about wills, including questions such as: must a will be stated in writing? what happens to your first wife if you divorce & remarry? can a will be witnessed via Zoom? could you leave your assets to an animal? Could you leave your assets to SELHuG? The wide variety of answers that we generated demonstrated that people like us are very ignorant about making a will. 

She defined a will as ‘a legal document that expresses a person’s (the testator’s) wishes as to how their property (their estate) is to be distributed after their death and which persons (the executors) are to manage the estate until its final distribution’. 

One can leave your estate either ‘absolutely’, meaning it passes directly to the beneficiaries, or ‘in trust’, meaning it becomes the property of the trust whose trustees then manage its distribution according to the conditions you define in setting up the trust. Trusts are usually used to minimise liability for Inheritance Tax, to manage the assets on behalf of children, particularly if they are disabled or ‘wayward’, or to protect family assets from estrangement, divorce, bankruptcy etc. Ann described in some detail the various types of trust and the process of creating a trust deed. She also talked about leaving gifts to charity. 

If a person dies without making a will they are described as ‘intestate’. There are legal rules that lay down who can inherit the estate and how it should be divided between spouse or legal partner, parents and children. 

She then moved on to Lasting Powers of Attorney (LPAs). These were introduced in 2007 and ensure that, should you be unable to manage your own affairs, your attorney can manage your affairs on your behalf. They apply either to property and financial affairs or to health and welfare. If you lose mental capacity without an LPA in place, your family must apply to the Court of Protection to have a deputy appointed. This is a slow and very expensive process. She also mentioned Advanced Directives, sometimes known a Living Wills. This is a legally binding document that allows you to make your wishes known regarding refusal of certain medical treatments. Your decisions in an Advanced Directive override any that your family or doctors may want to make on your behalf, therefore the wording is critical. 

Ann concluded by saying that, although making a will, establishing power of attorney, and writing an Advanced Directive are, in principle, quite simple, in practice there are many pitfalls that must be avoided if your wishes are to be implemented if you are incapacitated and after you die. 

Review by Tony Brewer