Making a Will is one of the most important things you will do in your lifetime. It caters for far more than just who will benefit from your belongings (your estate).
Lasting powers of attorney (LPAs) in English law were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney (EPA) which were narrower in scope.
Their purpose is to meet the needs of those who can see a time ahead when they will not be able – in the words of the Act, will lack capacity – to look after their own personal and financial affairs. The LPA allows them to make appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.
The LPA is a specific form of the more general power of attorney which is widely used in countries which have a common law system. The word attorney in this context is someone (or in some circumstances an organisation such as a company) legally appointed or empowered to act for another person. The person giving the power is known as the donor. The word ‘lasting’ in the context of an LPA means that the power may continue even if the person (though still alive) no longer has capacity to exercise the power.
The former EPA was simple to administer, but failed to provide for some decisions which may have to be made in circumstances that preclude their being made by the person principally affected. In particular, the attorney’s powers under the EPA were largely defined in terms of money and property, and were not related to decisions on medical matters such as the continuation or otherwise of life-sustaining treatment, or welfare matters such as a move to a different kind of accommodation. The primary purpose of the changes under MCA 2005 was to rectify this omission, by creating two LPas: one for property and financial affairs (the LPA(PFA)) and one for Health and Welfare (the LPA(H&W)). The opportunity was also taken to make further changes, whose principal effect was to make the whole apparatus very much more complex, and correspondingly more expensive to administer.
A will is a legal document where a person, names one or more persons to manage his or her affairs and estate. In “olden” times, a Will referred to property, and a Testament referred to personal property, hence the term now used “Last Will and Testament”.
If someone dies without making a will, they are said to have died “intestate”. If this happens, the law sets out who should deal with the deceased’s affairs and who should inherit their estate (property, personal possessions and money).
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