Who can witness my will?
What is a witness?
In order for a will to take effect, it must be correctly signed by the testator (the individual making the will) as well as two independent witnesses. Anyone over the age of 18 with mental capacity can witness a will, such as a neighbour, friend, GP, solicitor or members of staff at a bank. The witnesses must not be related to the individual or have any personal interest in the will itself. The role of a witness is to ensure that the same person who has written the will is also the one signing it.
Why are witnesses important?
The main role of a witness is to confirm the identity of the individual who has created the will and to prevent fraud through false signature and coercion. Wills are a written expression of a person’s desires and therefore quite personal, by having the correct witnesses in place, this ensures that the will is valid and can be executed as intended by the individual.
Refusing to sign a will
There are situations where you can refuse to sign a will, these include (this is not a definitive list, so please use your own judgement when taking on such responsibility):
- If you feel the individual whose will you will witness does not have sufficient mental capacity e.g. dementia, brain injury, a disability or a mental illness;
- If you are named as a beneficiary of the will or are related to the individual, you should not sign as a witness,as this could cause disputes later on;
- If you believe the individual is being forced into creating the will; or
- The person signing the will is not the testator.
If you have any doubt as to the testator’s identity or ability, you should refuse to sign the will.
The consequences of incorrect witnessing
If a will is not executed correctly, it will become invalid and could lead to a previous will being considered (if there was one previously) or the intestacy rules would apply. These are a set of rules which govern how property (estate) is divided up if a person dies without leaving a valid will and can result in unfavourable outcomes in some cases. Therefore, it is important to seek legal advice if you are considering making a will or already have one but need it witnessed. Our experienced solicitors can guide you on the most appropriate way to witness your will, depending on your situation.
This article is for the information purposes only and does not constitute legal advice. For further information, please contact us via email at hello@my-local-solicitor.com or call us on 01244 478730.
Author: Mahum Fatima
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What is the difference between Enduring Power of Attorney and Lasting Power of Attorney?
What might happen to an individual in the near or far future is something that none us like to think about. This article is going to outline the differences between the two types of Power of Attorney and why it is something we should all give some thought.
Enduring Power of Attorney (EPA)
Someone who is known as the “Donor” can appoint an attorney who will act in the donor’s best interests. As long as the EPA is legal, and the donor has given permission you can start using the EPA at any time after someone has lost their mental capacity. Matters that the attorney will be dealing with will include financial decisions such as property, investments, and any bills. Any EPA signed before October 1st 2007 will still be effective but after this date Donors have to make a Lasting Power of Attorney instead.
Lasting Power of Attorney (LPA)
Just like the EPA, the attorney has to act in the best interests of the Donor. However, unlike the EPA there are two different types of LPA which are a Property and Financial Affairs Attorney or a Health and Welfare Attorney. This highlights how limited EPAs are and how LPA’s offer a much more flexible approach.
A Financial Affairs Attorney can be used before or after someone loses their mental capacity and can involve anything from using the Donor’s money to buy their home essentials such as food too buying and selling property for the Donor.
A Health and Welfare Attorney can only be used after the Donor has lost mental capacity and it can include making decisions about the donors living arrangements and medical care. Of course, after the death of the donor, the Will of the donor will take priority over the LPA.
Other key differences between EPA & LPA:
- An Enduring Power of Attorney must be registered after the Donor starts to lose their mental capacity. This differs to a Lasting Power of Attorney for Financial Affairs because there is the option to act on behalf of the Donor while they still have their mental capacity. If there is another reason why the Donor cannot act for themselves for example bad physical health, the attorney can act under the financial LPA whereas under an EPA this would not be possible. It is important to underline that Health and Welfare Attorneys acting under the Health and Welfare LPA can only ever act in the event of the Donor losing mental capacity.
- Under the rules of EPA’s there is no such thing as replacement attorney in the circumstance that the attorney you appoint becomes ill. If a Donor wants multiple attorneys, they all have to work together which could become complicated. Regarding LPA’s, you can appoint replacement attorneys which mitigates the risk of an attorney becoming unable to act anymore.
If you require any further information regarding the Lasting Power of Attorney we are here to help. Please contact us on 01244 478 730 to book your free, no obligation consultation.
Written by: Jessie Smith
Photo by Romain Dancre on Unsplash
This article does not constitute legal advice and is for informational purposes only. Please contact us on 01244 478730 or at hello@my-local-solicitor.com to book an appointment.
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Do I need a solicitor to draft a Lasting Power of Attorney?
There are various DIY kits out there which you may use to write an LPA, however, this is not always a straightforward process and there is a lot to consider. The Office of the Public Guardian estimates that around 15% of the forms they receive contain errors, some of these can go unchecked which can cause issues later on. By using a solicitor, you will have the assistance of a legal expert who can look after your best interests and add details which take care of unexpected circumstances.
Before deciding to write your own LPA, you may wish to consider the following:
- How many attorneys are you appointing?
- What happens if they cannot agree?
- If you have property abroad, have you thought about how this would be managed?
- Do you own your own business? In this case, a separate Business LPA is needed.
- If an error goes undetected and the donor loses capacity, would the LPA still be valid?
The above points highlight the importance of getting a second opinion, as such matters are personal and can have major implications for someone. By having a LPA in place, you could save your family and friends from having to make difficult decisions concerning your health whilst giving you some peace of mind over your own matters. At My Local Solicitor, we do not have extortionate rates and do what is necessary to make this process as stress-free as possible. We offer a free, no-obligation consultation during which we are able to discuss your requirements. In short, the answer to the question above is therefore: why risk it?
Do I need a Lasting Power of Attorney?
There is a common misconception that Lasting Power of Attorneys (LPAs) are specifically designed for the elderly, this is not the case. There may be instances where a person is unable to make their own decisions, examples of this include strokes, heart failure and in the case of meningitis, which is why a well written LPA should not be underestimated. As they provide a significant amount of control to an individual, if written correctly and with professional guidance LPAs can ensure that they work in your best interest. It is also worth noting that an individual may lose mental capacity at any age, if this happens and there is nothing in place that stipulates how their affairs are to be arranged, they risk losing the freedom to express their wishes.
There are two types of LPAs which cover:
- Health and care; and
- Financial decisions
A health and care LPA can only come into force when an individual becomes mentally incapable of making a decision for themselves. This type of LPA covers issues relating to healthcare, treatment and living arrangements. If this is not communicated through an LPA, you could risk receiving treatment which you might not have wished for.
A financial decisions LPA allows you to delegate responsibility of your finances and assets to someone else, this person is called the Attorney.
You can transfer power over matters such as:
- Receiving income and benefits
- Pension payouts
- Paying for your mortgage
- Managing your investments
To find out more, call us on 01244 478730 or email us with your details at hello@my-local-solicitor.com. You can find out more about LPAs here https://my-local-solicitor.com/lasting-powers-of-attorney/
Written by Mahum Fatima
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Understanding dementia
What exactly is dementia? It’s a broad term that covers a variety of progressive disorders that affect the brain. While there are hundreds of subtypes, some of the more common include dementia with Lewy bodies, vascular dementia and Alzheimer’s disease.
The human brain comprises nerve cells that communicate with one another via messages. Dementia causes the nerve cells to be damaged, stopping messages being sent to and from the brain correctly, preventing the human body from normal functions.
Progressive disorders such as dementia can diminish sufferers’ ability to make competent decisions and can result in a loss of mental capacity.
Lasting Powers of Attorney
Granting LPA status to a friend or family member before you are no longer capable of caring for yourself can be prudent, if you wish to decide what happens to you when you lose mental capacity. You can dictate who cares for you and how you’re cared for, and can also include a statement of specific wishes.
Without a nominated LPA in place, the courts will appoint someone to care for you and this may not be someone you would originally have desired to be handling your affairs.
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