The new year has arrived and now is as good a time as any to think about those jobs you may have been putting off. Here's a legal health check* you should consider to ensure that you and your family are protected now and into the future.
Make a Will
Thinking about making a Will can be difficult but it is important to ensure that your loved ones are protected and provided for.
If you don't have a Will, Intestacy Rules will apply. These are legal rules which set out who will inherit your estate in the absence of a Will. However, these individuals may not be the people you would want to benefit. When you make a Will, you can decide who you leave your assets to, to ensure that the people who are important to you are provided for.
If you have already made a Will, it is important to review it regularly to make sure it still expresses your wishes and satisfies what you consider important. For example, there may have been significant changes to Inheritance Tax rules, changes to your personal circumstances (eg, through births, deaths, marriages and divorces) or significant increases or decreases in your wealth since you made your original Will.
Consider Estate Planning
As a result of making or reviewing your Will, it is likely that you will have discussed any potential Inheritance Tax liability. This tax is charged on the value of assets you own at the date you pass away, plus the value of certain trust assets and gifts.
Inheritance Tax can be a significant cost to your estate at the time you pass away, meaning that less of your estate ends up passing to your chosen beneficiaries. By reviewing your tax position while you are alive, you will have time to plan and may find that you can take steps to minimise any Inheritance Tax payable in the future.
The possibility of having to pay care home fees is also a concern to many people and, in some circumstances, it may be possible to take steps to protect at least part of the value of your estate against future care fees.
It is important to consider these issues early and take any necessary steps now. Often when tax or care fees become payable it is too late to make any savings.
Make a Lasting Power of Attorney
Most people are aware of Wills but may be less familiar with a Lasting Power of Attorney (LPA). Whereas a Will takes effect on death and passes your assets to your chosen beneficiaries, an LPA is a legal document that is active while you are alive. It will state which individual(s) you have chosen to make decisions on your behalf if you are unable to make those decisions for yourself.
A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.
There are two types of LPA. One deals with financial decisions, including making payments from your bank account, managing your investments or selling your property. The other type deals with health and care decisions, including medical treatment, where you live, or whether you should receive life sustaining treatment.
Decisions about your health and care can only be made by your attorney(s) when you are unable to do so yourself.
You can only make LPAs while you still have mental capacity. Capacity is not always linked to age or ill health. We all hope that we will always have the ability to make our own choices, but the reality is that many of us may lose this ability. Although dementia is a common cause of incapacity, you may suffer from an accident at any time, leaving you unable to make or communicate decisions.
If you are without an LPA, a costly and time-consuming Court application may be needed to appoint someone (a Deputy) to make decisions for you. This may be extremely upsetting for your loved ones. They may be unable to make decisions in the meantime about your health needs. They may not be able to access funds to pay for care you might need, or to maintain your home.
By having an LPA in place, you are planning for the future, whatever it brings.
Consider a Living Will
You may have very strong views about the medical treatment you would / would not want to receive in particular situations. You could deal with this by making an LPA for health and welfare decisions or you may wish to prepare a ‘Living Will’. This legal document sets out what you would want to happen if faced with a medical condition or the need for medical treatment. It is important that a Living Will is registered with your medical practitioners and reviewed regularly for it to be effective and followed by your doctors.
Consider your funeral wishes
It is not necessary to have a pre-paid funeral plan in place before you pass away. Some people prefer to express their funeral wishes in their Will, but it may sometimes be the case that a Will is only reviewed after the funeral has happened. It is, therefore, very useful to have a discussion with your loved ones concerning your funeral wishes or to prepare a letter expressing those wishes - this could be kept with your other important papers.
Why not make it your New Year’s resolution to seize the moment and make 2019 the year you legally protect yourself and your loved ones for now and for the future.
(*This is not an exhaustive list)
Written and contributed by: Rebecca Tribble of WSP Solicitors
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to WSP Solicitors directly.
Published on 4th January 2019
(Last updated 28th February 2019)