Planning for you and your loved ones during Covid-19

The first case of the Covid-19 Coronavirus was reported in England on 31 January. Since then we have seen numerous steps taken to try to prevent the spread of the virus. These include: –

  • Self-isolation for those aged over 70, with long term health conditions or virus symptoms
  • Social-distancing measures
  • Hospitals and care homes closed to visitors

These newly imposed restrictions mean for many that it has become more difficult to support elderly or vulnerable friends and family who we may have been supporting before the virus, or need more support now as a result of the virus.

For some of us, concerns might have arisen about who would make decisions about our medical care if we couldn’t make them for ourselves, and whether our worldly possessions would pass to our loved ones as we intended in the event of our death.

What legal documents could you put in place to help?

Helping with finances – Powers of Attorney

Powers of Attorney allow a person to appoint people that they trust to help them to manage their finances. There are 3 main types of financial Power of Attorney: –

  1. Lasting Power of Attorney (LPA) for Property and Finances – appoint people to help you with your finances even if you lose mental capacity in the future. An LPA needs to be signed by you, an independent person who is satisfied that you fully understand the document, all of your attorneys and registered with the Office of the Public Guardian before it is valid. The registration process takes approx. 8-10 weeks and so it will usually take a minimum of 3 months to put an LPA in place. There are reports of delays at the Office of the Public Guardian of 4 weeks or more, so the process could take longer.
  2. Enduring Power of Attorney – an earlier version of the LPA and only valid if it was created before October 2007. Registration with the Office of the Public Guardian is required if the person who created it loses their capacity.
  3. General Power of Attorney – gives someone authority to help you with your finances but this document is cancelled if you lose capacity in the future. This document is quick to prepare and can be used as an interim measure while an LPA is being created.

Health and medical decisions

  1. Lasting Power of Attorney for Health and Welfare – appoint people to help make medical and care decisions for you if you lose capacity to make your own decisions, for example if you were unconscious or had advanced dementia. The process of creating this document is the same as the financial LPA mentioned above and takes a minimum of 3 months.
  2. Advance Decisions / Living Wills – sets out specific medical treatments that an individual would not want to receive in the future.
    If you make both of these documents, the most recent document could cancel parts of the earlier document.

Your estate in the event of your death

If you have not made a Will, your estate will pass on your death under the intestacy rules. Details of who will benefit can be found at https://www.gov.uk/inherits-someone-dies-without-will Key individuals who do not benefit under the intestacy rules are unmarried partners and step-children.

If you already have a Will in place, is it up to date?

Jointly owned assets will usually pass to the surviving owners unless held as tenants in common. Do you need to review the ownership of any assets?
You may also own assets that pass outside of your Will because they are held in a trust. Pensions, Death in Service benefits and life insurance are often held in trust and will usually pass in accordance with any nomination or letter of wishes that you have provided. Are these up to date?

Signing legal documents

The majority of legal documents are not legally binding unless they have been signed in ink by the person making the document. Signatures on Powers of Attorney and Advance Decisions need to be witnessed by another person who must be in your physical presence. Wills need two witnesses to be physically present.

If there is any question of capacity or understanding of the legal document at the time of signing, it could be challenged at a later date. Lawyers will also consider capacity when taking instructions and offer potential safeguards, such as capacity assessments, where there are concerns.

In the main, we are able to arrange for documents to be signed and witnessed whilst still respecting the social distancing and self-isolation rules. However, this can prove more difficult if a person is admitted to hospital where the visitors are not allowed and staff are likely to be too busy to print documents and arrange to witness signatures. There may be similar issues if an individual is in a care home that is not accepting visitors, although care homes tend to have more capacity to set up telephone or video calls with a resident and help with witnessing signatures.

We’re here to help

We are living in unprecedented and uncertain times. The situation is changing on a daily basis and we are all having to adapt quickly to new circumstances and challenges. Putting your legal affairs in order may help to offer you some peace of mind that you, and your loved ones, are better prepared to deal with any challenges that may come your way. Hopefully, the documents won’t be needed, but it’s sensible to put them in place if you can.

If you would like to discuss the circumstances of you or your loved ones to help you to understand the things that should be considered, please do not hesitate to call me on 01903 534526 or email: amanda.attrell@coolebevisllp.com.

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