When is the right age to make a Will?

  • Author: Daniel Curry
  • Posted on: 28th November 2019
  • Posted in: Blog

Some People Seem to be Living Longer...

which is a good thing, but many older people generally, or younger people who may have been involved in accidents or unforeseen health traumas, may lose the ability to look after themselves or their affairs and may ultimately require constant medical attention.

In these circumstances, it is advisable for everyone, as part of ordinary life planning, to take simple steps which may improve the quality of life for themselves and their loved ones and which may enable future problems to be more easily dealt with and which will provide peace of mind moving forward.

Make a Will

It is simple, quick and easy to put a professionally drawn Will in place and thereby ensure that your Estate will be distributed in accordance with your wishes rather than under the Intestacy Rules which quite possibly would give you a different set of beneficiaries from those that you would have chosen yourself and would have set out in your Will.

Solicitors are ideally placed to advise on the structure and content of your Will so that it will give effect to your wishes and minimise the Inheritance Tax (at the rate of 40%) to be paid on your Estate.

There are various formalities which need to be complied with. These are deceptively simple and for the unwary, or untrained, it is easy to make costly mistakes, so seek professional advice.

Make a Living Will

A Living Will (also known as an "Advanced Decision or Directive") is a document that sets out your wishes regarding healthcare and how you want to be treated if you become seriously ill or unable to make or communicate your own choices.

The document may also be helpful to relatives and to medical professionals in the case of you becoming seriously ill or incapacitated.

A Living Will is therefore part of planning what to do in the event of serious illness or disability. It is not an instrument of euthanasia, but a request in advance to doctors not to give, or to give, certain medical treatments.

Clearly, it is extremely hard to anticipate one's state of mind when dying (or when receiving significant medical treatment) and equally hard, if not impossible, to anticipate what one's state of mind will be when one is in a coma. All we can do through the Living Will is give an indication to your family and the medical professionals as to what you believe your wishes would be in such a situation, but ultimately any decisions made will be at the discretion of your medical experts.

The advantages of making a Living Will may be summarised as follows:

  • It will respect your Human Rights and, in particular, your right to reject medical treatment.
  • Knowing what you want means that doctors are more likely to give appropriate treatment.
  • The Living Will will help medical professionals and your family to take the difficult decisions.
You are able to change your Living Will at any stage and whilst it is not a legally binding document, health professionals and your family do have to take a Living Will into account when deciding on a course of action and your family and friends can also use the Living Will as evidence of your wishes.

A Living Will prepared by a Solicitor is usually an inexpensive exercise which can prove to be invaluable in providing peace of mind.

Make Lasting Powers of Attorney (LPAs)

A Lasting Power of Attorney (LPA) is a legal document that you make using a special form. It allows you to choose someone (your Attorney(s) you trust to make decisions about things such as your finances and property, or your personal welfare on your behalf at a time in the future where you are no longer able to or you may lack the mental capacity to make those decisions yourself.

An LPA can only be used when it is registered with the Office of the Public Guardian.

There are two different types of Lasting Powers of Attorney.

  • Firstly, there is a Property and Affairs LPA which allows your Attorney to make decisions on your behalf about your property and affairs, including paying your bills, collecting your income and benefits, or selling your house subject to any restrictions or conditions. You can appoint a Property and Affairs Attorney to manage your finances and property, while you still have capacity as well as when you lack capacity.

For example, it may be easier for you to give someone the power to carry out tasks such as paying your bills or collecting your benefits or other income. Your Attorney may, therefore, buy or sell any property you own, open/close or operate any bank/building society or other accounts containing your funds and claim, received and use all benefits, pensions and allowances on your behalf.

  • Secondly, a Health and Welfare LPA allows your Attorney to make decisions on your behalf about your personal welfare, including whether to give or refuse consent to medical treatment on your behalf or in deciding where you live. These decisions can only be taken on your behalf when you lack the capacity to make them yourself, for example if you are ill, unconscious or because of the onset of a condition such as dementia.
If you make an LPA that does not contain any restrictions or conditions, once the LPA is registered your Attorney will be able to do anything that you can do now in relation to your personal welfare. This might include:

  • deciding where your permanent place of residence should be;
  • deciding what care and accommodation may be appropriate for you;
  • consenting to any medical treatment or procedure or therapy of whatever nature for your benefit and providing access for that or refusing such consent;
  • deciding alone or with others on the level of care which you may require;
  • making decisions about your dress, diet and personal appearance as appropriate;
  • choosing your social or cultural activities.
This is not an exhaustive list and merely provides examples of the types of powers that are included in a Health and Welfare LPA.

You may wish to include in either Power a condition that your Attorney must act in a certain way, or include restrictions preventing your Attorney from specifically making some of the decisions listed above.

It is important when making an LPA that you are satisfied that you have given your Attorney the right powers to enable them to make the decisions you want to be made about your personal welfare in the future, should you lack the capacity to make them yourself.

There may be times when your Attorney needs to access personal information about you, for example from a doctor, bank or solicitors, to help them make a decision that is in your best interests. Most of this information will be personal information about you and much of it will be sensitive and/or confidential and if you wish to restrict your Attorney in obtaining any such information, you should make this clear when you grant the Power.

You can include restrictions or conditions in either LPA which allow you to decide which decisions you want your Attorney to make you may want to add a condition to your LPA so that your Attorney must act in a particular way.

  • For example, you could say that your Attorney must always talk to a particular person before making a decision about where you live. You may also want to limit the powers your Attorney has.
  • For example, you could include a restriction that your Attorney can only make decisions about your social care, but not about any aspect of your healthcare or vice versa.
When making decisions on your behalf, your Attorney must follow any restrictions or conditions that you have included in your LPA. You may though like to include some broader written guidance on your wishes and feelings on particular matters. This will not be binding on your Attorney but may help him when making decisions in your best interests.

If you have your Attorney the power to make personal welfare decisions without any restrictions or conditions, they will be able to give or refuse consent to medical treatment.For example,

  • An operation, a course of treatment or a particular procedure.
  • They will also be able to make decisions about dental or optical care or whether you can take part in any types of research projects.
It is important to remember that treatment is ultimately a clinical decision and your Attorney cannot demand treatment which doctors do not believe is necessary or clinically worthwhile. If you want your Attorney to have the power to make decisions about ‘life sustaining treatment’ you have to expressly give your Attorney the power to make such decisions.

If you do not give your Attorney the ability to make decisions about life sustaining treatment, these decisions will be made by a health professional instead. Life sustaining treatment means any treatment that a doctor considers necessary to sustain your life and it will depend on the circumstances of a particular situation.

Examples of life-sustaining treatment include serious surgical operations, for example, a heart bypass; receiving chemotherapy, radiotherapy or undergoing surgery to treat cancer; or an organ transplant Life-sustaining treatment could also include though, more day-to-day procedures or treatments, for example, a course of antibiotics if you have breathing problems and develop pneumonia.

Whether treatment is life sustaining or not would depend upon the situation. The important factor is if the treatment is needed to keep you alive, though life sustaining treatment usually also includes artificial nutrition or hydration. That is food or water that is given to someone other than through their mouth, usually through a tube but sometimes directly into the veins. It does not mean eating or drinking by mouth.

If you allow your Attorney to make decisions about life sustaining treatment, this may mean making decisions about whether or not to withdraw treatments in situations where that treatment has become burdensome or is not effective.

The Last Powers of Attorney you are proposing to grant are, therefore, very powerful legal documents and it is extremely important that you exercise great care in appointing your Attorney and considering whether you place restrictions or guidance in your LPA. Your Attorney can only use the powers granted by the LPAs when they have been correctly completed, signed and witnessed and have been registered with the Office of the Public Guardian.

Benefits and Costs of registering LPAs:

The benefit of registering the LPAs shortly after they are made is that they will be ready to be used by your Attorney when they are needed. If an Application to register your LPAs is made a long time before they are needed, you may need to look at the registered document from time to time to make sure that the contents are still relevant to your circumstances and you do have the power to vary or revoke your LPAs at any time whilst you retain the mental capacity to make decisions on your own behalf.

There is a fee payable to register each Lasting Power of Attorney in the sum of £82.00 per LPA.

Since many people seem to be living longer, there is inevitably more for people to think about and longer life can bring with it additional complications. The "good news", however, is that the mechanisms are easily, quickly and inexpensively available for us to properly organise our affairs and once done we can have peace of mind and know that we have done all that we can to ease the path for ourselves, our family and friends in the event that there are difficult times to come. The benefit and impact of the steps we take now can last for many years so investing now will be time and money well spent.