Answering your Questions on Powers of Attorney, Wills and Succession Planning - Kuits Solicitors Manchester
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Answering your Questions on Powers of Attorney, Wills and Succession Planning

Answering your Questions on Powers of Attorney, Wills and Succession Planning

24th March 2020 - Published by Private Client team

In these testing times, we have seen a significant increase in enquiries from clients in relation to the need to put in place Powers of Attorney and Wills. As always, our aim is to help clients achieve peace of mind.

For swift, expert advice on your personal planning needs, please contact Paul Bricknell on 0161 838 7860 or email paulbricknell@kuits.com.

Here, in response to the specific questions you have been asking, we summarise the key protections you can put in place and the speed at which you are able to do so.

POWERS OF ATTORNEY

Powers of Attorney can cover two general areas: your finances and your healthcare.

Finances

If you need for someone to look after your finances for you due to temporary physical incapacity there are three options

1. Enduring Power of Attorney

Many people will have in place an old Enduring Power of Attorney (EPA) whereby they appoint one or more people to deal with their finances if they can’t deal with them themselves. Whilst it has not been possible to put a new EPA in place since 2007, they are still valid. If you have an unregistered EPA in place, your attorneys can use it provided you are still mentally capable; however, the wording of the EPA should be reviewed as many contain a clause stating the power can only be used at the onset of mental of incapacity, and not before.

In this situation, the EPA can’t be used if the reason why you require assistance is physical incapacity (or, in the current circumstances, due to self-isolation). At the onset of mental incapacity, the EPA needs to be registered with the court and this typically takes 6-7 weeks (although we anticipate it may take longer at present). During this period, the power can only be used for limited purposes.

2. Lasting Power of Attorney: Property and Financial Affairs

Lasting Powers of Attorney (LPAs) replaced EPAs in 2007. The LPA is more flexible than an EPA in that you can appoint replacement attorneys if the first named attorney cannot act and, as it can be registered immediately, there is no delay for its use at the onset of mental incapacity. The document should, however, be reviewed to ensure it does not contain a clause that states the power is only to be used at the onset of mental incapacity – this would make the power ineffective if assistance is required due to physical incapacity (or, in current circumstances, due to self-isolation).

It should be noted that a replacement attorney cannot act unless the first named attorney cannot act due to death or their own mental incapacity.

If you don’t have a Power of Attorney in place (or your current power doesn’t reflect your current needs), you can put in place an LPA now; however, you should be aware that it cannot be used in any circumstances until it is registered with the courts, which typically takes around eight weeks (although, again, this may take longer at present).

3. General Powers of Attorney

Whilst we generally recommend that all clients have an EPA or LPA in place, if you don’t have anything in place at present and are concerned that you may need something in place for an immediate need (such as self-isolation), a General Power of Attorney may be a good stop gap. A general power allows for someone to deal with your finances on your behalf providing you are still mentally capable. It does not need to be registered and could be in place in a matter of days and used immediately.

The downside with a general power of attorney is that it immediately becomes ineffective if you become mentally incapable, whereas the Enduring and Lasting Powers of Attorney are specifically designed to cover this eventuality. Our advice would be to put in place a new Lasting Power of Attorney and register it immediately, whilst simultaneously putting in place a general power of attorney to cover any immediate needs whilst the power is being registered.

Health and Welfare

As well as being able to cover your finances with a Lasting Power of Attorney, you can also give power to someone to make decisions about your medical treatment using a Lasting Power of Attorney Health and Welfare. Under this protection, if you become mentally incapable, your attorney(s) can decide what medical treatment you get, where you receive care and ultimately whether or not you receive life sustaining treatment. As with the financial power, the LPA needs to be registered with the court, again taking around eight weeks.

WILLS

A well planned Will can take a bit of time to put in place. However, if you are without an up-to-date Will, it may be better to put in place a ‘holding’ Will, rather than having no Will at all or an out-of-date document that does not match with your current wishes.

Our expert advisors can put in place a Will in a short period of time. The law requires that two independent witnesses need to be present when you execute a new Will, which may be difficult if you are self-isolating/social distancing, we are successfully helping clients find solutions in the current circumstances.

TAX AND SUCCESSION PLANNING

Whilst succession planning might be the last thing on people’s minds at present, we have had a number of clients contact us about taking the opportunity of depressed stock markets and property prices to make tax efficient gifts out of their estates. This has included outright gifts, gifts into trust and the use of family investment companies. As with powers of attorney and Wills, we can implement planning in a short period of time.

To get prompt, expert advice on powers of attorney, Wills and tax planning, please call Paul Bricknell on 0161 838 7860 or email paulbricknell@kuits.com.

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