Coronavirus (COVID-19) FAQs regarding Wills and Powers of attorney

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Coronavirus (COVID-19) FAQs regarding Wills and Powers of attorney

07/04/2020

The continuing effects of coronavirus remain uncertain. Understandably, many people are concerned about its potential impact upon them and their loved ones. Warners’ Private Client team has put together some common questions clients are asking at this difficult time.

Q1 – My Will is several years old; do I need a new one?

You should review your Will regularly. A good rule of thumb is every time there is a significant change in your circumstances or every five years. This does not necessarily mean that your Will needs to be amended with each change of circumstances, but you should at least make sure it continues to reflect your wishes.

Although it is important to maintain an up-to-date Will, making rash changes during a time of distress is ill-advised. If you are unsure, you should seek advice about whether your Will needs updating.

Q2 – My Will no longer reflects my wishes, but I am self-isolating. How can I make a new Will?

To support those in self-isolation, and in line with social distancing guidelines, instructions for a new Will can be taken via telephone or video call.

Unfortunately, signing your Will is more problematic. When you sign your Will, two people must witness your signature. Witnessing via video link is not sufficient. However, your witnesses need only be ‘in line of sight’ of you when you sign, and they could witness you signing through a window or over a garden fence.

We are hoping that the Ministry of Justice might relax these rules but at the moment they have not done so. We can discuss with you making arrangements for your Will signing suitable for your individual circumstances.

Q3 – I have coronavirus and have not made a Will. What will happen to my estate if I do not survive?

If you die without a valid Will, your estate will be dealt with under the rules of intestacy. Exactly how the rules apply depends upon your family circumstances, as well as the value of your estate.

In general terms, a spouse or civil partner and any children would have the highest priority. After this, more remote members of your family could inherit, or if you have no family at all, your estate could pass to the crown. By making a Will, you can ensure that your assets pass according to your wishes and not in accordance with predetermined law.

Q4 – I have coronavirus and am worried about Inheritance Tax. Should I give money to my children while I am still alive?

Making gifts during your lifetime does not necessarily escape Inheritance Tax. If you make a gift and you do not survive for seven years, the gift is still considered part of your estate when you die.

You should also carefully consider your own needs before gifting money. Once you part with an asset, you also part with all rights to it. The only way this can be reversed is if the person receiving the gift chooses to return it. Before making any gift, you should always seek advice and make sure it is properly recorded.

Q5 – My elderly relative is self-isolating and cannot get to the bank. How can I help?

Without authority, you cannot access another person’s bank account. Authority might be as simple as putting something in place with one specific bank, or it could mean your relative granting a power of attorney.

A property and financial affairs lasting power of attorney will grant authority to deal with financial affairs, including day-to-day banking. The process is, however, rather lengthy, as lasting powers of attorney must be registered with the Office of the Public Guardian before they can be used. If your relative has mental capacity he or she should seek advice on the best solution for them before signing any legal document.

Q6 – I am an attorney for someone who is self-isolating but who has capacity. Should I start acting for them?

A financial affairs lasting power of attorney can either give you authority to act if the person who granted the power asks you to help them, or it may state that you can only act if the person no longer has mental capacity. You need to check the individual power of attorney to see if you have authority to assist with their financial affairs at present.

You should also note that if the person has made a health and welfare lasting power of attorney, this may only be used if they lack mental capacity to make their own decisions. They cannot delegate their health and welfare decisions. Everybody is presumed to have capacity unless it is proven otherwise. If you are unsure about whether you should be acting, you should seek advice.

Q7 – I have coronavirus. I am an attorney or deputy for a vulnerable person who does not have capacity, I usually visit every week and am worried they will be confused or upset if I do not appear. What should I do?

In your role as an attorney or deputy, the best interests of the person you are acting for must be central to every decision you make.

At present, the Government advice is clear. Everybody should be social distancing and those who are particularly vulnerable should be self-isolating. If the person you are acting for lacks capacity they may not understand the need for self-isolation, and you should help to ensure that this occurs by stopping your usual visits. It is vital that attorneys (or deputies) and carers work together for the best interests of the person they are looking after. Now, more than ever, you should ensure that you are in regular contact with the person’s care team to ensure their needs are being met.

For further information or advice on any of these issues, please contact us on 01732 770660 or email [email protected].

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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