Peter Stephens, Partner and Wills, Powers of Attorney and Probate Specialist at mfg Solicitors Ludlow Office sets out what you need to review to check your legal affairs are in order during lockdown.
I, like many legal practitioners, am regularly asked by clients to discuss what steps they should take to ensure that their affairs are in order so that they can be dealt with as straightforwardly as possible in the unfortunate event of being affected by the Covid-19 virus. There are a number of simple steps that should be taken now which will assist not only you but also those you may have entrusted to look after your affairs.
1. Check that you have an up to date Will in place and that you have reviewed its provisions and are happy with them. Ideally, both you and your Executors should know where the original Will is located.
2. Ensure that you have appropriate ‘Power of Attorney’ in place. These are likely to be ‘Lasting Powers of Attorney’ which deal with not only ‘financial decisions’, but also ‘health and care decisions’. There is a separate Lasting Power of Attorney for each. The Office of the Public Guardian is able to provide certified copies of Lasting Powers of Attorney where such documents have been previously registered.
Some clients may have an ‘Enduring Power of Attorney’ in place. These documents would have been made in 2007 or before. They cover property and finances, but not health and care decisions. Those that have an Enduring Power of Attorney should check the appointments made under it. Be aware that new attorneys cannot be added now. Instead, a new Lasting Power of Attorney for financial decisions would have to be made if there were to be such changes.
If you are acting for someone under an Enduring Power of Attorney, please remember that in the event of the donor beginning to lose mental capacity, it must be registered at the Office of the Public Guardian before it can be used, or continue to be used. This is a legal requirement.
Some people may also have ‘Living Wills’ and ‘Advance Decisions’ in place. There may be some uncertainty as to how effective these documents are in practice. Generally, however, nowadays it may be better to replace them with a health and care Lasting Power of Attorney. Under this, the donor may specifically appoint an individual, or individuals, to make decisions about health and care that the donor would have made had they the mental capacity to do so.
3. Ownership of your home and land is almost always worth reviewing. The majority of properties are now registered at the Land Registry however, there are still many properties which remain unregistered. If your property is unregistered, you should ensure that you know the whereabouts of its original deeds and that they are in a safe place, the whereabouts of which are known to your Executors and Attorneys. If unregistered, it may be prudent to have the property registered now.
4. Check and understand the ownership of co-owned assets, including property. In particular, not understanding the different effects of holding property as ‘beneficial joint tenants’ or as ‘tenants in common’ can cause problems.
Where couples jointly hold bank or building society accounts, you should be able to ensure that each has access to funds personally in the event of one or the other losing capacity. Please remember that most ‘bank mandates’ will cease to be effective in the event of a joint account holder losing mental capacity. A subsequently frozen account can cause significant difficulties.
5. It would be sensible to locate Birth and Marriage Certificates and draw up a Schedule of your Assets covering property, bank accounts, building society accounts, on-line account, pensions, life policies and investments etc. This information will be useful to any Attorney and/or Executor in the event of one’s incapacity, or death.
The above points may seem simple, however, it is all too common to find that not addressing these at an early stage, can lead to significant time delays, investigations, problems and even disputes that might otherwise have been avoided.