When it comes to making a Will or arranging Lasting Powers of Attorney, appointing the right executors and attorneys is important. These roles involve controlling your estate and assets and possibly making life-changing decisions on your behalf. So let’s look at these roles and how to appoint suitable people to act as your executors and attorneys.
Choosing executors for your Will
When you make a Will, you will be asked to choose an executor. This person will legally manage your estate administration after your death. You can have more than one executor; for example, this could be your partner, siblings, or adult children. Being someone’s executor is a responsible role. They will have to pay any debts and taxes relating to your estate, and they will need to distribute your assets to the beneficiaries of your Will.
As estate administration is a big responsibility, it shouldn’t be taken lightly. If an executor does not fulfil their role, they could face legal prosecution. A notable case recently involved an executor who ignored his duties and was threatened with a prison sentence.
The England and Wales High Court (EWHC) ordered the three-month imprisonment of Mark Totton as he deliberately ignored a court order. As the sole executor of Hazel Totton’s estate, he had sold her house but failed to give the beneficiaries their share of the estate. His excuse was that he’d “buried his head in the sand.” It can be difficult to act as an executor while you’re grieving, which is why choosing a suitable executor is important.
At least one of your executors must be 18, so they can apply for probate, a legal document allowing someone to manage your estate. It’s advisable to choose at least two executors, and you can nominate up to four people. However, some people find it difficult to appoint an executor and, for example, decide to nominate all their adult children.
Your executor should be someone you can trust to be responsible with money. As appointing a suitable executor can be difficult, you could appoint your solicitor to act as one of your executors. This can be useful when it comes to the estate administration, which can often be very complicated.
Choosing attorneys for Lasting Powers of Attorneys
A Lasting Power of Attorney (LPA) allows your loved ones to make decisions on your behalf should you lose mental capacity due to an illness or accident. There are two types – Property & Financial Affairs and Health & Welfare. The financial LPA can be used if you still have capacity, for example, if you would like help managing your money or a property sale. When you apply for an LPA, you will nominate ‘attorneys’ to act for you.
Being an attorney comes with its own set of responsibilities. So, it’s important to nominate someone you can trust to look after your affairs if you were to lose capacity. Usually, this is a family member, such as a partner, son, or daughter. But an attorney does not have to be related to you; they could also be a trusted friend, and you can have more than one attorney.
Again, trust is the key word here; your attorneys may need to make life-changing decisions on your behalf when you can no longer do so. A Health & Welfare LPA gives someone the right to make decisions relating to your social care and healthcare. So, they could be deciding which care home you move into. Without this type of LPA in place, social services would manage these types of decisions, and you’re unlikely to have a choice of care facilities.
There have been many cases of attorneys abusing their responsibilities, and sadly this has included appointed family members. This could be where they have not acted in a person’s best interests, such as misusing money. If you have concerns about an attorney’s actions, contact the Office of the Public Guardian.
Seek advice for Wills and Lasting Power of Attorneys
If you haven’t made a Will or don’t have Lasting Powers of Attorneys in place, then it’s advisable to arrange these as soon as possible. Unfortunately, serious illnesses and accidents can strike at any age. And it’s too late to put in place an LPA once you have lost the capacity to make important decisions. Don’t run the risk of losing control of your estate, social care, and healthcare.
Our financial planning team has a lot of experience advising our clients on estate planning, Wills, and Lasting Powers of Attorney. We can also recommend trusted solicitors to assist your family with estate administration if required.
If you need advice on Wills, Lasting Powers of Attorney, and estate planning, please get in touch to speak to our financial planners.
Sources:
https://www.gov.uk/report-concern-about-attorney-deputy-guardian
https://www.moneyhelper.org.uk/en/family-and-care/death-and-bereavement/choosing-your-executor
https://www.lawsociety.org.uk/topics/private-client/appointment-of-a-professional-executor
