ACIG15
Putting your affairs in order Your guide to wills and Lasting Powers of Attorney clear, helpful advice
free guide
revised, updated
managing your life
Inside this guide page 3 Introduction 4 How to make a will 5 Choosing executors 6 What to include in your will 6 Signing the will 7 How to change a will 7 What happens if I do not make a will ? 8 Making arrangements for the future 8 Mental Capacity Act principles 10 Arrangements for others to look after your finances 13 Property and affairs LPAs 14 Personal welfare LPAs 15 Who to choose as your attorney 16 How to make a Lasting Power of Attorney 17 Living wills 18 Advance decisions 19 Advance decisions to refuse life-sustaining treatment 20 What happens if I do not make any arrangements ? 21 What happens if I do not have anyone to support me ? 22 Useful organisations 24 What should I do now ?
The four national Age Concerns in the UK have joined together with Help the Aged to form new national charities dedicated to improving the lives of older people. This guide is not a comprehensive statement of the law in this subject and Age Concern and Help the Aged cannot give individual legal or financial advice. The information given in this guide is applicable in England and Wales. Different arrangements may apply in Northern Ireland and Scotland. Some rules may have changed since the publication of this guide. If you have any queries which this guide does not answer, seek further advice from one of the organisations suggested. Printed on paper made from 100% post‑consumer waste Code: ACIG15 (second revised edition) Date of publication: July 2009 © Age UK 2009
Introduction This guide looks at some of the things you can do to plan for the future and make sure that your wishes are carried out. It includes information about making a will and what would happen if you were to die without making one. It also covers some aspects of the Mental Capacity Act 2005, which sets out the law on what happens when someone can no longer make their own decisions about their finances or personal welfare. You might want to prepare for a time when you can no longer make or communicate your decisions because of an illness or injury. This guide explains what you can do if you want someone else to be able to make decisions on your behalf and how to make sure that your wishes are taken into account by the people who are looking after you. Throughout this guide you will find suggestions for organisations that can give further information and advice about your options. Their contact details can be found in the ‘Useful organisations’ section. upages 22–23 Contact details for local organisations can usually be found in your local phone book. If you have difficulty finding them, your local Age Concern should be able to help. upage 22 The information given in this guide is applicable in England and Wales. Different arrangements apply in Northern Ireland and Scotland. Readers in those countries are advised to contact their national Age Concern organisations for further information. page 22 u
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How to make a will You can either make your own will or instruct a solicitor to do it for you. If you decide to make your own will, you must make sure that it will be valid and that it will lead to your wishes being carried out. This guide gives you some information about how to make a valid will, but it will not be enough on its own to make sure you get it right. It is usually best to get advice from a solicitor, except in very simple cases. If you decide to go to a solicitor, this guide will suggest what you should think about before you go. If you are aged 70 or over, or if you are disabled, you may be able to get free help with writing a will from a solicitor under the legal help scheme (a type of legal aid). You also need to meet requirements relating to your income and capital to qualify for this. You can ask a solicitor whether you would be eligible for the legal help scheme. what next ?
To find a solicitor in your area who can advise you on making a will, contact the Solicitors Regulation Authority (SRA). upage 23 If you want to find a solicitor who can provide advice under the legal help scheme, contact Community Legal Advice (CLA) Direct. upage 22
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Choosing executors Whether you make your will yourself or with the help of a solicitor, you must decide who will be your executor(s) – the people who deal with distributing your money and property after your death. Being an executor can involve a lot of work and responsibility so you should consider carefully whether the people you want to appoint would be suitable and you should always check with them that they are willing. You can appoint up to four executors. It is often a good idea to choose more than one, so that they can share the responsibility, and in case one of them dies before you do. The executors can be beneficiaries – that is, they can inherit something from you under your will. You can appoint a professional executor, such as a solicitor or an accountant. They will charge for their services and this will be paid out of your estate. Your estate is the total money, property and investments that you leave when you die. You might want to consider appointing a professional executor if your estate is particularly large or complicated. what next ?
Consider carefully whom you would like to appoint as your executor(s), explain to them what is involved and check that they are willing to take on the role.
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What to include in your will You should make sure that it is clear what you want to happen to your whole estate. You can make specific gifts to particular people and then state where the residue of the estate (any property or money left over) is to go. Or you could divide your estate up between a number of people in certain proportions, for example half to your spouse and a quarter each to your two children. You should also state what you want to happen if one of the beneficiaries dies before you do. You can leave money to charities in your will if you wish to do so.
Signing the will You must sign your will in the presence of two witnesses, who must then also sign it in your presence (ie all three people must be in the room together when each of them signs). It is very important to make sure that the witnesses are not beneficiaries under the will, unlike executors. If someone whom you have named to inherit something under the will is one of the witnesses, they will lose their right to the inheritance.
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How to change a will If you want to change a will, you can either revoke (cancel) the old will and make a new one or add a codicil to the original will. A codicil is a supplement to the will that details amendments or additions and must be signed and witnessed in the same way as an original will. If you revoke a will you should destroy it and state on the new one that it revokes all previous wills. If you marry, remarry or enter a civil partnership this will usually invalidate a previously existing will. Divorce does not automatically invalidate a will made during the marriage.
What happens if I do not make a will ? If you die without making a will, your property and money may not go to the people you wanted to inherit. The basic situation is that if you have a spouse or civil partner and children, your partner will inherit at least the first £125,000 of your estate, and all your personal possessions, with your children or grandchildren having a claim to anything over £125,000. If you do not have children, your partner will be entitled to at least the first £200,000 and all your personal possessions, and they will then share any remainder with your other relatives. If you do not have a spouse or civil partner, your estate will go to your other relatives in a certain order. If you do not have any surviving relatives your whole estate will go to the Crown.
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Making arrangements for the future If you lack mental capacity to make a particular decision it may be necessary for someone else to make that decision on your behalf. Mental capacity means being able to make and communicate your own decisions. Someone might lose their mental capacity to make certain decisions if, for example, they have a stroke, are suffering from mental illness or develop dementia. The decisions could be about day-to-day things like what to wear or when to pay a bill, or they could be more important decisions such as whether it is necessary for an individual to move from their accommodation into residential care, or whether they should have a particular type of medical treatment. Pages 10–21 explain different arrangements you can make to give someone the power to make decisions on your behalf. They also give details of what can be done if you have not made any arrangements but you lose mental capacity to make your own decisions.
Mental Capacity Act principles The Mental Capacity Act provides a legal framework to help empower people to make their own decisions and to make clear what actions carers and family can take. A code of practice explains how people should use it in everyday situations. continued u
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ucontinued The Act sets out five principles to follow when assessing whether someone lacks capacity and when making decisions on their behalf. 1 A presumption of capacity A person must be assumed to have capacity to make their own decisions unless it can be established that this is not the case. 2 The right to be supported to make a decision All practicable steps must be taken to help a person to make their own decision before anyone concludes that they do not have the capacity to do so. 3 The right to make unwise decisions A person should not be treated as unable to make a decision just because they make an unwise decision. 4 Best interests Any act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests. 5 Least restrictive intervention Before making a decision on behalf of someone without capacity, all alternatives must be considered and the option chosen should be the least restrictive of the person’s rights and freedom of action. what next ?
Age Concern produces a factsheet (number 22) on the Mental Capacity Act that includes more detailed information for people who are planning for their own future and for those making decisions on their behalf. upage 22
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Arrangements for others to look after your finances You might want someone to look after your financial affairs even if you are still mentally able to do so yourself. This could be because you are going abroad for a while, or going into hospital, or you need someone to manage your residential care payments, or even because you just want some help keeping things in order.
Ordinary Powers of Attorney An Ordinary Power of Attorney gives someone else the power to handle your financial affairs on your behalf. You can give someone (or more than one person) a general power to do anything that you could do yourself, or you can restrict their power so they are only allowed to do certain things. The important thing to remember about an Ordinary Power of Attorney is that it comes to an end if you lose the mental capacity to make decisions about your finances. A Lasting Power of Attorney upage 11 can be set up to work like an Ordinary Power of Attorney while you still have mental capacity. what next ?
You can get a form for setting up an Ordinary Power of Attorney from a law stationer (although there is no standard form that you must use), or a solicitor can prepare the document for you. continued u
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Lasting Powers of Attorney If you want someone to be able to continue looking after your finances even if you lose mental capacity to make your own financial decisions and you are no longer able to supervise their actions, you should consider setting up a property and affairs Lasting Power of Attorney (LPA). This is a new power, which replaces the previous system of Enduring Powers of Attorney (EPAs). One big difference between LPAs and EPAs is that as well as setting up an LPA to cover your financial affairs, you can set one up to give someone else authority to make decisions about your healthcare and personal welfare when you can no longer make those decisions yourself. The previous system of EPAs dealt only with financial matters, not personal welfare. See pages 13–14 for more details on the two types of LPAs. Since 1 October 2007 no new EPAs can be set up, but ones created before that date will still be valid. An EPA can be used while you are still able to manage your affairs but once you lose mental capacity to make your own decisions the attorney(s) must register it at the Office of the Public Guardian (OPG). If it has not been registered, it is not valid if you have lost the capacity to make your own financial decisions. what next ?
If you already have an EPA and want to know more about how and when to register it, contact the Office of the Public Guardian. upage 23
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case study
Jennifer’s mother set up an Enduring Power of Attorney 10 years ago … My mother is in her nineties, and although she is still very much on the ball, she has been housebound for a few years. She appreciates having me able to look after her finances – things like paying her bills and dealing with the small investments she has. I always discuss any important decisions with her and she knows that if the time does come when she is no longer able to play a part in making those decisions, she can trust me to do whatever’s for the best. Happily we have not had to register the EPA yet, but it’s been really useful so far. Having heard about the recent changes in the law, we’ve been talking about maybe setting up a Lasting Power of Attorney so that I can make decisions about how she is cared for if that becomes necessary. There are obviously a lot of different issues involved as we’re talking about decisions about very personal things, but it’s something to think about for the future. 12
Property and affairs LPAs You can set up an LPA to give others authority to deal with your finances (a property and affairs LPA). The LPA cannot be used until it is registered at the Office of the Public Guardian. upage 23 This can be done at any time – you can register it yourself so that it can be used immediately, or your attorney(s) can register it if you lose capacity to make your own decisions. Under a property and affairs LPA your attorney(s) can make decisions on your behalf even when you still have mental capacity, as long as the LPA is registered, unless you have stated on your LPA form that you do not want this to happen. You can appoint more than one attorney under an LPA. You can specify that they must act together on all decisions, or you can give each of them the power to act independently. You can limit the powers you give your attorney(s), so for example you might not want to give them the power to sell your house. Or you can give the attorney(s) unrestricted authority to make any decisions on your behalf. The types of decisions and actions that could be covered by a property and affairs LPA include: 1 1buying or selling property 1 1paying your mortgage 1 1investing your money 1 1paying your bills 1 1giving people access to your financial information 1 1arranging repairs to your property.
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Personal welfare LPAs Like a property and affairs LPA, a personal welfare LPA can only be used once it has been registered at the Office of the Public Guardian. upage 23 But there is a big difference in that the personal welfare LPA can only be used if you have lost mental capacity to make that particular decision about your care and treatment yourself. If you are able to, you should make those decisions yourself. You can register a personal welfare LPA as soon as it is created so that if the time comes when your attorney(s) need to use it, there will not be a delay while they register it themselves. This might be important if a treatment decision needs to be made. You can limit the types of decisions that your attorney(s) can make on your behalf, or you can give a general power without restrictions. The types of decisions and actions that could be covered include: 1 1whether you continue to live in your own home, perhaps with support for social services, or whether residential care would be more appropriate for you 1 1whether or not you should have a certain type of medical treatment 1 1what you should eat 1 1who you should have contact with 1 1what kinds of social activities you should be involved in. Your attorney(s) can refuse or consent to medical treatment on your behalf as long as you have not restricted their authority to make those decisions. But if a decision has to be made about life-sustaining treatment, the attorney can only refuse that treatment if you have said in the LPA document that you want them to be able to make that kind of decision. 14
Who to choose as your attorney When deciding whom to choose as your attorney(s) you should make sure you choose someone you can trust to act in your best interests. For a personal welfare LPA, in particular, you should be confident that they know you well enough, and understand your values and beliefs well enough, to be able to make decisions that take into account your wishes. For a property and affairs LPA you should choose someone who is good at handling their own money and who has the knowledge and expertise to be able to deal with your finances and keep your accounts. You should always check with the person you want to appoint that they would be willing to take on the responsibility. Whoever you choose as your attorney(s) they must follow the principles set out in the Mental Capacity Act when they are making decisions or acting on your behalf. So they must always do whatever is in your best interests. Mental capacity can vary over time and someone may be able to make certain decisions but not others, so your attorney(s) must do everything practicable to help you make the decision yourself, rather than assuming you lack capacity in each situation. what next ?
For more information about setting up an LPA see the guidance produced by the Office of the Public Guardian. There are separate guides for property and affairs LPAs and personal welfare LPAs. You can order copies from the Office of the Public Guardian or download them from its website. upage 23
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How to make a Lasting Power of Attorney There are separate forms for making a property and affairs LPA and a personal welfare LPA. When you complete the form, you must have your signature witnessed. The form must also be signed by a ‘certificate provider’, who must confirm that in their opinion you understand the effect of signing the LPA and you are not being pressured by someone else to do it. A certificate provider can be a professional such as a doctor or lawyer, or someone who has known you for at least two years. The form must be registered at the Office of the Public Guardian before it can be used. There is a fee of £150 for registering an LPA, so if you are registering both a property and affairs LPA and a personal welfare LPA, you will have to pay a total of £300. You may be exempt from having to pay the fee if you cannot afford it. Ask the Office of the Public Guardian about the fee remissions scheme. what next ?
To obtain the forms for creating an LPA, order copies from the Office of the Public Guardian or download them from its website. Also contact the OPG for the forms you need for registration of an LPA. upage 23
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Living wills Another way of trying to make sure that your wishes are carried out when you are no longer able to communicate them yourself is to make what is sometimes called a ‘living will’. This is basically where you let other people know how you would like to be treated in the future. It could relate to your medical treatment, what kind of diet you want, where you would like to be cared for, or any other aspect of your personal welfare. The only type of ‘living will’ that is legally binding is a decision to refuse medical treatment. Any other advance statement, such as letting people know you would prefer to be treated in a particular hospital, or that you have preferences or requirements relating to your diet, should be taken into account by the people providing your treatment when they are deciding what is in your best interests, but they are not legally bound to follow your wishes. I want to know that if I ever have to go into hospital or be looked after in a care home, I will only be given vegetarian food. No one can predict what will happen in the future, so I’ve made a written statement to be kept with my medical records, and I’ve let my family and friends know about it, just in case the time comes when I cannot let people know myself.
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Advance decisions Under the Mental Capacity Act a ‘living will’ can be legally binding if it is a decision to refuse medical treatment. This is known as an advance decision. An advance decision does not have to be in writing (unless it is an advance decision to refuse life-sustaining treatment, see page 19), but to avoid any uncertainty it is best to put it in writing and make the details of your decision as clear as possible. You should set out exactly what kind of treatment you wish to refuse. It may be a good idea to get your written decision witnessed, perhaps by your doctor, to confirm that it represents your wishes. A verbal statement expressing your advance decision to refuse treatment is legally binding, but there is more risk that there could be a dispute over the detail of your decision, or the person providing the treatment may not be aware of your decision at the relevant time. There is no legal right to demand specific treatment and healthcare professionals do not have to provide treatment that conflicts with their professional judgement.
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Advance decisions to refuse life-sustaining treatment If you decide that you do not wish to receive particular types of treatment in the future that may be necessary to keep you alive, you can make an advance decision that will be legally binding on the people providing your treatment. For it to be valid this must meet certain requirements.
1 1It must be in writing (if you cannot write it yourself someone else should do it for you).
1You 1 must sign the decision (or if you are unable to make a signature, you can direct someone else to sign it in your presence).
1 1A witness must sign the decision, confirming that you have signed it (or directed someone else to sign it) in their presence.
1 1It must include a statement that the advance decision is to apply to the specific type of treatment even if your life is at risk. If you have already made an advance decision to refuse life-sustaining treatment but it does not meet the above requirements, you should make a new one. An advance decision made before 1 October 2007, which is in writing but does not meet the other requirements, will be valid if you have lacked mental capacity to make a new one since 1 October 2007. If you make an advance decision to refuse treatment, and later make an LPA giving someone else authority to make that kind of decision for you, your advance decision will become invalid. Make sure that your attorney(s) are aware of your advance decision and that you trust them to carry out your wishes. 19
What happens if I do not make any arrangements ? If you have not made any arrangements (such as an LPA or advance decision) for what should happen if you lose mental capacity, it might be necessary for the Court of Protection to become involved. The Court of Protection can make decisions about what would be in your best interests in a specific situation, or it can appoint someone called a deputy to make decisions on your behalf. The system of court-appointed deputies is set up under the Mental Capacity Act and replaces the old system of receivers. Any existing receivers will now be known as deputies and their powers remain largely unchanged. The new system covers personal welfare, as well as financial decisions. Like attorneys, deputies can make decisions on your behalf if you lack capacity. They must always make decisions in your best interests, following the other principles of the Mental Capacity Act and having regard to the code of practice. The Office of the Public Guardian supervises deputies and can give guidance on their role. The person appointed as a deputy is usually a relative or friend of the person but anyone can apply to be appointed as deputy. The Court of Protection will look at whether it is in your best interests to have a deputy, and whether the person applying to be appointed is suitable. To apply to be a deputy, you must make an application to the Court of Protection. what next ?
Contact the Office of the Public Guardian for more information. upage 23 20
What happens if I do not have anyone to support me ? There is a new service established under the Mental Capacity Act called the Independent Mental Capacity Advocate (IMCA) service. This is for people who do not have the mental capacity to make decisions about their own healthcare and welfare, and who do not have friends or family who are willing or able to support them or be consulted about decisions that need to be made about their care. An IMCA must be instructed to support and represent people in this situation if a decision needs to be made about serious medical treatment or about a long-term stay in hospital or a care home. An IMCA can also be instructed to represent the person in relation to a care review or in an adult protection case. The role of the IMCA is to find out information about what would be in the person’s best interests, to represent that person and to challenge any decision that does not appear to be in their best interests. It is the responsibility of the NHS organisation or local authority providing the care to instruct the IMCA.
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Useful organisations Age Concern For more information and details for your local Age Concern in England, please call the Age Concern Information Line on 0800 00 99 66 (free call) or visit www.ageconcern.org.uk In Northern Ireland, Scotland or Wales, contact: Age Concern Northern Ireland Tel: 028 9032 5055 Website: www.ageconcernni.org Scottish Helpline for Older People (Age Concern Scotland) Tel: 0845 125 9732 Websites: www.olderpeoplescotland.org.uk www.ageconcernscotland.org.uk Age Concern Cymru Tel: 029 2043 1555 Website: www.accymru.org.uk Help the Aged Produces a range of free advice materials for older people and runs SeniorLine, a telephone information service. Tel: 0808 800 6565 (SeniorLine) Tel: 020 7278 1114 (information materials) Website: www.hta.org.uk Alzheimer’s Society National organisation offering information and support for families and carers of those affected by dementia. Tel: 0845 300 0336 Website: www.alzheimers.org.uk Community Legal Advice (CLA) Direct Free legal information and help finding a solicitor to provide advice under the legal help scheme. Tel: 0845 345 4345 Website: www.communitylegaladvice.org.uk 22
Mind The mental health charity can provide information on the Mental Capacity Act. Tel: 0845 766 0163 Website: www.mind.org.uk Office of the Public Guardian (OPG) Contact the OPG for guidance on the Mental Capacity Act and for information about making an application to the Court of Protection. The code of practice can be downloaded from the OPG website or ordered as hard copy for £15. A series of guidance booklets is also available to download for free. Tel: 0845 330 2900 Website: www.publicguardian.gov.uk Solicitors Regulation Authority (SRA) The regulatory body for solicitors in England and Wales which can provide details of solicitors in your area. Tel: 0870 606 2555 Website: www.sra.org.uk
please support us Age Concern is the largest provider of services to older people in the UK after the NHS. We make a difference to the lives of thousands of older people through local resources such as our befriending schemes, day centres and lunch clubs and through our national freephone helpline – the Age Concern Information Line. If you would like to support our work by making a donation please call Supporter Services on 020 8765 7527 (Monday to Friday 9.15am–5pm) or visit www.ageconcern.org.uk Thank you. 23
What should I do now ? If you would like more information on the issues covered in this guide, to order other guides or obtain this guide in a more accessible format, please call the Age Concern Information Line on 0800 00 99 66 (free call) or visit www.ageconcern.org.uk / information The following Age Concern information guides may also be useful: 1 1Help with care in your own home 1 1Help with legal advice 1 1What to do when someone dies. Age Concern publishes a range of books on issues relevant to older people. Browse our online bookshop at www.ageconcern.org.uk / bookshop Contact details for your local Age Concern may be in the box below. If not, call the Age Concern Information Line on 0800 00 99 66 (free call).
Age Concern is a federation of registered charities. Age Concern England (charity number 261794) has merged with Help the Aged (charity number 272786) to form Age UK, a charitable company limited by guarantee and registered in England: registered office address 207–221 Pentonville Road, London, N1 9UZ, company number 6825798, registered charity number 1128267. Age Concern and Help the Aged are brands of Age UK. The three national Age Concerns in Scotland, Northern Ireland and Wales have also merged with Help the Aged in these nations to form three registered charities: Age Scotland, Age NI, Age Cymru.