Jacqueline Emmerson, Managing Director of Emmersons Solicitors, reflects upon the Wills and Private Client work that she has been involved with over many years.
“I was first taught to draft wills when I worked at a large City firm. I can still remember going out to visit clients at their homes and businesses to take instructions. In those days Lasting Powers of Attorney didn’t exist. It is therefore unsurprising that many people know about the need to draft a Will but know very little about the importance of a Lasting Power of Attorney.”
Jacqueline has given many talks to members of the public, charities and the business community about the the need to make a Lasting Power of Attorney. Here she sets out some of the important highlights from those talks…
THE DIFFERENCE BETWEEN A WILL AND A LASTING POWER OF ATTORNEY
Many of our clients become confused about the role of an Attorney and an Executor. When you appoint an Attorney under a Lasting Power of Attorney you are doing so so that they can assist you during your lifetime. They may become involved in sorting out your banking, utility bills, applying for welfare benefits, sorting out house insurance, paying for care home fees or selling your home on your behalf.
It is important to remember that your Power of Attorney ceases when you die. There is no further role for your Attorney. That is because all of your assets then immediately fall to your estate.
This is different to your Will under which you appoint Executors. Your Executors are responsible for sorting out all of your assets and debts after your death. They manage your Estate. They will need to see the records kept by your Attorney if they managed your affairs before your death but otherwise your Estate is separate from your Power of Attorney.
THE BUSINESS OWNER’S LASTING POWER OF ATTORNEY
Many of you reading this article will be business owners. You are the signatories on your business bank accounts, you may own business property such as offices, factories and houses. You may employ dozens of staff. But what will happen if you become ill, who will run the business, sign the cheques, manage the banking. Have you made a list of your business assets and loans/mortgages? Have you made a list of important contacts such as your bank manager, accountant, financial advisor?
Depending upon the size of your business it may be prudent to make two Lasting Powers of Attorney in relation to your finances. The first being to appoint attorneys who could successfully manage your business on your behalf either until you regain your health or perhaps until the business can be sold. Selling the business as a going concern may be more valuable than simply disposing of its assets.
You will need to choose business attorneys carefully. You may wish to appoint your spouse or partner and perhaps your accountant. That way your spouse continues to be involved and will have an understanding of your ongoing affairs. Or do you work with a trusted business advisor who could be appointed.
If you need a separate business-related lasting Power of Attorney then don’t forget your personal LPA. In this case it is often prudent to appoint your spouse or partner together with another family member or friend. It is better to have more than one attorney in case one of them dies or becomes unable to act themselves because of serious ill health.
HOW CAN YOU HELP YOUR FAMILY?
You may have noticed one of your relatives, perhaps your parent, starting to struggle. Are they becoming confused by everyday tasks? Is dealing with their bank or utility bills becoming far too much for them to cope with? Are they struggling to get out of the house so that going to the bank or dealing with any type of officialdom becomes a real issue. Maybe now is the time to have a conversation about appointing attorneys to help them. A LPA is not just to be used for people who lack mental capacity. It can also be used when someone is simply frail. It can also be a very useful source of help for your friends and family who have cancer. They may be exhausted from ongoing treatment and therefore unable to deal with their financial affairs. There is nothing worse than being kept on hold to a bank or insurance company for long periods of time.
HOW CAN WE HELP YOU?
At Emmersons Solicitors, our award wining Private Client Team are trained to assist those who are struggling. Or clients who simply wish to plan ahead to help those who will help them later. We are very sympathetic and can usually spot when a client needs extra support. Our aim is to be kind and to guide our client through the process with dignity.
Many of our clients and their families feel a great sense of relief once they have been to see us; we also offer telephone appointments or even just a brief chat if that is all that is required. Many times we have helped the adult children of an older person. We can quickly provide a plan of action during a brief telephone conversation. Including how to have the Lasting Power of Attorney conversation and suggestions as to who the attorneys should be.
WHAT HAPPENS IF MY RELATIVE HAS ALREADY LOST MENTAL CAPACITY?
It depends upon the severity of the situation. Some clients with early stage Dementia are still able to make a LPA. The law states that they must know what they are doing both when they give instructions and when they sign the relevant documents.
If it is clear that your relative would not understand a LPA then you can apply to the Court of Protection to become their Deputy. This is a more onerous process than the drafting of a LPA and is worthy of a proper conversation with our Team .