Legal FAQs Rochester | Ahead of Time Consultants

Why have a Power of Attorney?

If something happens to you due to an accident or illness, it is often unforseen and unexpected. Having a POA protects both yours and your families interests, you can control by choice who makes decisions about your money, property, or health and welfare, and how those decisions are made.

It provides you with peace of mind that your affairs will be managed according to your wishes.

Who would the 'Attorney' be?

In a Lasting Power of Attorney (LPA), the "attorney" is a person or people of your choice that you trust to make legal, financial, welfare and health decisions on your behalf with your wellbeing in mind. They would make these decisions when you are unable to. Most people choose family members or close friends over the age of 18, but you can also nominate professionals.

What is Mental Capacity?

Mental capacity means your ability to understand information and make decisions about your life. Having mental capacity means you can make your own decisions and understand the consequences of those decisions.

What happens if I do not have a Lasting Power of Attorney (LPA)?

If you lose mental capacity and do not have an LPA in place, someone wishing to act on your behalf will need to apply to the Court of Protection to be appointed as your Deputy. Your Deputy will then be able to make decisions on your behalf. This can be a lengthy and expensive Court process. You also do not get to choose who you want your Deputy to be.

Will my attorney have complete control over me?

No, your attorney will not have complete control over you. They must always act in your best interests and involve you in decisions as much as possible. You retain control while you have mental capacity, and can even cancel the LPA at any time.

How do I choose who to act on my behalf?

Crucially, you must choose someone you completely trust, who understands your wishes, is reliable, and willing to take on the responsibility of managing your finances in your best interests. It's also wise to appoint more than one attorney or replacement attorneys to provide protection if your first choice is unable to act.

Before you ask a friend or family member to be one of your attorney's, it may be worth asking yourself if you see them as caring, helpful, reliable and good with money.

Selecting a family member who is good with money is a sensible option for a Property and Financial Affairs Lasting Power of Attorney (LPA) but it's not the only factor to consider.

Is a Lasting Power of Attorney (LPA) valid after death?

No, a Lasting Power of Attorney ends when you pass away. The attorneys can longer manage your affairs. With this in mind, it is important to have a Will in place to ensure your affairs are looked after when you have passed away.

What is a Will?

A will is a legal document that outlines what happens to your money, property, and possessions after you die. It must be made in writing, clearly marked as a will, and signed by you and two witnesses.

Who can make a Will?

Anyone over the age of 18 can make a will, provided they have the mental capacity to understand their actions.

Why do I need a Will?

A will allows you to control your estate and ensures your last wishes are respected, providing peace of mind for your family.

What happens if I die without a Will?

This is what is referred to as intestacy. Effectively what that means is there’s a very strict order in who will inherit your assets. If you did without a Will and with a spouse/civil partner but no children, then that person will receive the entire estate. However, there is a common assumption that this is also the case where you are married or in a civil partnership with children, but this is not the case. Instead, the spouse/civil partner receives a set amount (currently £322,000) and personal belongings but the remainder is then split equally between your spouse and the children. What we can see happening here is that if the house is worth more than what the spouse is entitled to, they end up co-owning the property with the children no matter their age. There are lots of complexities if this happens so it’s really important to have a Will.

Additionally, if you are not married or in a civil partnership then the intestacy provisions do not provide any entitlement to a cohabittee.

What is the executor of a Will?

Executors have a really important role. If you’re making a Will, you will name someone or a few individuals to act in the administration of your estate and these are the executors. The role of these individuals is to collect in all of your assets, pay off any liabilities, and distribute your assets in accordance with the terms of your Will. Effectively, they are the people that are implementing your wishes, whether that’s making sure that the guardianship clauses under the Will come into effect, making sure your funeral wishes are implemented or distributing your property and cash in the right way. It’s important that the people you appoint as executors are people that you trust to make the right decisions and to implement your wishes.

What is the beneficiary of a Will?

A beneficiary is someone who inherits something when someone else dies, as specified in their will. This can include various types of assets such as money, property, or personal belongings. The details of what each beneficiary receives are outlined in the will document itself.

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