Earlier this week, we became aware of a concerning story in a key Will writing publication reporting that 75% of carers were not aware of the benefits of a LPA. We've also been alerted to a law case , which raises some tricky questions about the nature of testamentary capacity and the potential for undue influence to become an issue.
Conscious also of the Law Commission's proposals to introduce a mental capacity test when writing a Will we thought it was time to look at estate planning from a carer's perspective.
Here are the three key things you need to do for your loved one if you are — or may become — their carer and you want to ensure that their wishes are honoured, no matter what.
1. Make sure your loved one has a LPA
According to a recent YouGov survey, commissioned by Carers' Trust, 82% of respondents had not made a LPA. This is very worrying given the negative impact that a loved one not having a LPA in place would have on their carers, so we thought we'd share what you need to know.
What is a LPA?
A Lasting Power of Attorney (LPA) is a legal document giving someone you trust the authority to make decisions on your behalf if you lack mental capacity at some time in the future, or no longer wish to make decisions for yourself.
What's in a LPA?
A standard LPA includes:
- Details of who you want to be your attorneys (the people you want to make decisions about your healthcare, properties and finances)
- Specific guidance about what exactly you want to happen regarding your care, your properties and your finances to help your attorneys make decisions on your behalf
There are three types of LPA: a Property and Financial LPA; a Health and Welfare LPA and a Business LPA.
You can find out more about each in our article 7 Little Known Facts about LPAs.
Inspired by the Edkins/Hopkins case (they were business partners, and Mr Hopkins left a substantial part of his estate to Mr Edkins in his Will, which Mr Hopkins' relatives unsuccessfully contested) we'll be writing more about Business LPAs soon, so stay tuned in if you own a business or are a director of a business.
2. Make sure they have a Will
Making a Will is the most important thing you can do if you want to be in control of what happens to your estate when you die. However, given the statistics on the increase in people contesting Wills it's really, really vital to take all the necessary steps to ensure your Will can't be contested.
As a carer, especially if you are not related to your loved one by marriage or bloodline, you are open to accusations of 'undue influence' should your loved one leave any of their estate to you, as in the case of Edkins and Hopkins. So it's vital to ensure that all procedures are followed to the letter, that you are not a witness to the Will and a beneficiary and that your loved one leaves a Letter of Wishes (aka a Letter of Intent).
3. Make sure they have written a Letter of Wishes if there is anything in their Will that a family member might contest
We've written about this before and cannot stress enough how important it is to leave a Letter of Wishes that explains your choices if you have written anything in your Will that might be contested, e.g., anything that means your benefactors are not who the intestacy rules would identify as the rightful heirs.
Ensure that your loved one has taken these three steps — making a Will; making a LPA and writing a Letter of Intent — and you have done all you need to maximise the chances of their wishes being honoured.