The appointment of an Attorney can help you deal with your affairs once you are no longer able. But they are not allowed to write a Will on your behalf.
By appointing an Attorney under a Lasting Power of Attorney (LPA), you can have someone you trust to deal with both your financial affairs and your health and welfare, should you become unable to manage them yourself.
If you do not make provision for an Attorney to act on your behalf, then your loved ones may have to make a lengthy and expensive court application in order to appoint one if you lose the ability to deal with your affairs.
You can choose to appoint an Attorney to deal with your health and welfare and in respect of your financial matters, or you can appoint an Attorney for only one of these aspects.
With regard to health and welfare, the Attorney can only act for you once you have lost the capacity to make your own decisions. In respect of a financial affairs LPA, you can choose to implement this while you still have capacity. This means that your Attorney could, for example, help you by going to the bank on your behalf if you find it difficult to go there yourself.
If you do not have a Will in place, and you lose the capacity to make one, your Attorney or anyone else cannot write one on your behalf. The process of putting a Will in place in this situation can be complicated and lengthy. An application would need to be made to the Court of Protection by your Attorney, asking them to put in place a Statutory Will.
Applying for a Statutory Will
The Court of Protection will need to see all the details of your financial situation when an application for a Statutory Will is made. This will include details of exactly what is in your estate, your outgoings, for example, care home fees, and also information regarding your family relationships.
The Official Solicitor will act on your behalf to review the information provided and put in place a Statutory Will that they consider to be fair. Anyone who may have expected to receive an inheritance from you can be involved in the process and will have the right to have their views considered.
Avoiding the need for a Statutory Will
By putting a Will in place while you still have the capacity, you can avoid the difficulties of potentially having a Statutory Will. Having a Will drawn up by a qualified professional means that you can be sure that your loved ones will receive what you wish them to have. You can also discuss estate planning, to ensure that your assets are protected as far as possible from expenses such as Inheritance Tax. You may also want to ensure that loved ones have the benefit of living in any property you own for as long as they need to.