As the world celebrated Fight Procrastination Day on 6^th September, I took time to reflect on the impact of clients delaying giving clear instructions. The most common areas that clients take time to consider are as follows:

1. Choosing appropriate guardians for their young children.
2. Writing a Will.
3. Appointing Attorneys to make decisions for them in the event that they lose capacity.

Should I wait before making a will until I have decided who should be guardians for my children?

The simple answer to this is “no”.

As a parent, the choice of guardians in the event that both parents have died prior to their children turning the age of 18, is one of the most difficult, and heart wrenching, decisions that a parent must make.

This often puts off young parents from writing their Wills as they simply cannot decide who should look after their children after they have gone. The impact of this can be quite dreadful. If they were to die without leaving a Will, the children will be entitled automatically to their inheritance once they turn 18 and that may not be the most appropriate way of dealing with their estate.

At least by writing a Will appointing Executors/Trustees who will manage monies until the children reach a specified age will help to protect their children.

What happens if you do not appoint guardians in a Will? If no guardians are appointed, then the Court will have to choose who would be best to look after their children but the Court always has the ability to do this even if guardians are appointed in the Will. Their Will simply shows the Court who the parents thought would be best to look after their children.

Can I appoint guardians after I have signed my will? Yes you can: either by a simple codicil or by a side letter, although any side letter should be dated signed and witnessed.

Should I write a will? Doesn’t the law say who will receive my money?

Writing a Will is the only way of ensuring that your assets are distributed in a particular way. Whilst the intestacy provisions under the Administration Estates Act 1925 state very clearly who is entitled in the event that you do not leave a Will, this may not be appropriate in your particular circumstances, and particularly if you have children.

The consequences of not writing a Will can be quite devastating. Children could be left out completely if the surviving spouse receives everything and then subsequently re-marries.

By writing a Will you choose who your Executors are, and who is therefore in charge of dealing the administration of your estate rather than leaving it to chance that the correct person will apply to be an administrator of your estate if you have not left a Will.

Why do I need an attorney, there is nothing wrong with me?

A number of clients delay appointing Attorneys under a Lasting Power of Attorney on the basis that they do not need to do so “yet”. Whilst this does seem a very logical reason, the consequences can be extremely expensive.

What happens if you do not have a Lasting Powers of Attorney? When no-one is appointed as your attorney, no-one can make decisions about your money, or your care on your behalf without being appointed as your deputy by the Court of Protection. The cost that court application completely dwarfs the costs of writing a Lasting Power of Attorney in the first place. A Lasting Power of Attorney gives you the opportunity to choose who can make decisions for you, as opposed to the court deciding based on the application it has received. Furthermore, it is very rare for a deputy to be appointed to deal with someone’s Health and Welfare decisions whereas it is very easy for you to choose who to appoint as an Attorney to deal with your Health and Welfare decisions.

I am regularly faced with clients who come to see me after their spouse/parent has moved into a care home as they can no longer manage their own affairs and they no longer have mental capacity. In these circumstances I advise the clients in front of me that the only option is to apply for a deputyship order, only for them to say that their spouse/parent had some paperwork about Lasting Powers of Attorney amongst their papers but had not done anything about it!

Summary

Early advice, proper advice, and consideration at a time when there is no rush makes decisions much easier, and often much cheaper. The cost of writing an emergency “deathbed Will” can often be twice the cost of an ordinary Will, and is far less traumatic for all involved.

Here to Help

Avoid procrastination. If you, or anybody you know, is in need of advice about Wills or Lasting Powers of Attorney, please contact us.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.