What’s on Your Legal Bucket List?
Heather Lally, Associate Solicitor and Trust and Estate Practitioner at Bowcock Cuerden LLP, urges people to consider the legal documentation that you should have in place to make life run a little smoother and assist those when you are gone.
It’s now been a year since the first lockdown on 23 March 2020 due to the Covid-19 pandemic. During that time there has certainly been an increase in people reviewing or making Wills, along with ensuring Lasting Powers of Attorney are in place. A reflection of increased awareness of difficulties that can be faced without such documents, coupled with more time to allow people to get their affairs in order.
What should be on your legal ‘Bucket List’ and why?
1. Make a Will / Review your existing Will
Having Executors and Trustees, along with Guardians for your minor children appointed by Will and specified beneficiaries can make your estate administration more straight forward. It removes the need in some cases for a family tree (genealogist) report to discover who is entitled to administer your estate and who is to benefit, this ultimately speeds up the process. Guardians acquire parental responsibility from the Will, so will be able to consent to medical treatment and access records and be recognised by all concerned as those with the legal authority to make decisions, avoiding potential conflicts within the family or applications to the Court.
2. Make a Lasting Power of Attorney for Financial decisions
A registered Lasting Power of Attorney (LPA) without restrictions allows your chosen Attorney(s) to act on your behalf in relation to all of your property and financial decisions if you are unable to deal with your affairs. This includes speaking to income providers, accessing funds, selling your property if needs be. If you own a business this can be vital to ensure the continuity of that business, particularly if you are involved in an accident or suffer a critical illness that means you cannot deal with matters as you normally would. Whilst a Director’s authority cannot be delegated to an Attorney, your Shareholder rights can be and hence an Attorney acting with a majority of shareholders allows the appointment of a new Director if needs be. Without an LPA, if you are unable to deal with your own financial affairs, it is likely a Deputy will need to be appointed through the Court of Protection. The Deputy may not necessarily be the person you would have chosen. In some cases a Local Authority Deputy may be appointed. The Court of Protection has to approve the appointment of a Deputy which can take some time for a person to be in place to deal with your affairs.
3. Make a Lasting Power of Attorney for Health and care decisions
Not everyone has close family members, even those that do, don’t always agree on decisions to be made. Appointing an Attorney(s) allows your chosen trusted people to act on your behalf in the event you cannot take decisions over your health and care. It allows your Attorney(s) to give or refuse consent to life sustaining treatment (if you choose for them to do so in your LPA). This means simple antibiotics that could save your life can be given with the Attorney’s consent. A Deputy appointment over Health and care is much more rare and only appointed by the Court of Protection in exceptional cases. Therefore without a Health and care LPA Doctors and Medical practitioners may be faced with difficult decisions between conflicting family members. If you have a pre-existing Advance Decision in place it is important that this is ‘ring fenced’ in your LPA, so your LPA does not revoke those decisions. Consider the recent BBC news report whereby in Sweden a man was given end of life morphine drugs instead of treatment for recovery of Covid-19. Without his son querying this decision and ensuring Covid-19 treatment was given instead, he would not have survived!
4. Consider making an Advance Decision
Advance decisions are not really mentioned so much now, since the introduction of LPAs for Health and care decisions. Some people have ‘Living Wills’ in place which like an Advance decision is a statement confirming your wishes in the event of you being alive but unable to communicate your wishes, such as being in a vegetative state. Some people with specific religious beliefs may express wishes such as not having blood transfusions. Other people may want wishes regarding DNR (Do not resuscitate).
5. Consider making a Partnership Agreement / Shareholder Agreement
This is so important if you have a business interest with others in partnership or a Limited Company. It should perhaps be number 1 on the list for business owners. It is a legal document which confirms what happens in the event you are alive and incapable of making decisions for the business and what happens in the event of your death. Cross Option agreements and key man insurance can be put in place to allow your business partner(s) / shareholders the first option to buy out your share of the business and have the funds to do so. Without an agreement in place conflicts can arise with family members / Attorney(s) who may have little knowledge of the business. Ultimately on death the Personal Representatives of your estate may face uncertainty and legal challenges regarding what is to happen to the share of the business within the estate and realising the full value of that share. This can lead to increased anxiety for beneficiaries and costs of estate administration. A Partnership Agreement / Shareholder Agreement should be considered alongside wishes in your Will.
6. Take estate / inheritance tax planning advice
Huge savings in inheritance tax can be made for your beneficiaries if you plan your affairs. Your adviser can take you through the different reliefs available to your circumstances and family set up. You can look to register any unregistered land or at the very least that your deeds and documents are securely held. It may be that Trusts can be set up to ensure beneficiaries form different relationships and vulnerable beneficiaries are protected. You can
also consider death benefits that may arise through life polies or pensions, who will receive them and whether those wishes need to be updated.
So what’s added to your legal shopping basket? Consider making a start and tick off your shopping list.
Bowcock Cuerden LLP has an experienced team of Solicitors assisting in Estate planning, Estate administration, Trusts, Lasting Powers of Attorney, Court of Protection matters and preparation of Wills, including members of the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Agricultural Law Association (ALA).
For more information on the issues addressed in this article, please contact Heather Lally on 01270 611106 or email email@example.com
This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.