Death comes to us all – let’s talk about it

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With the coronavirus death toll in the media on a daily basis, people are talking about death much more than usual and the subject is losing its taboo.

In 2011 the first ‘Death Café’ was held in the UK to provide an opportunity for people to ‘gather to eat cake, drink tea and discuss death’ in a positive way, and now there are over 10,000 such cafes happening around the world, including online.

While it is not always easy to think about, making the right plans now will give you peace of mind, and sharing your views will help to make things easier for your loved ones when the time comes.

‘We have certainly seen a huge increase in people wishing to make a Will or update an old Will, and prepare other legal documents’ says Aneesha Dhami, Wills, trusts and estate planning solicitor with Warners Solicitors in Tonbridge. ‘This is an opportunity to think about how you wish to be treated and cared for during your life, the legacy you will leave and how you might like your life to be celebrated.’

Here are some key things to discuss with your family or a legal advisor:

Preferences for treatment and care arrangements during your lifetime

Whilst death comes to us all, it is often what comes beforehand that goes unspoken about. However, during this time it is important that your wishes are known. After all, this is about ensuring your safety and comfort during your last moments. An attorney for health and welfare can voice your wishes when you are no longer able to do so.

If you are unable to, your health and welfare attorney will make decisions such as where you live, the care you receive – even, if necessary, the type of food you eat and who visits you. It may be that one family member is better suited to this role, whereas another is better suited to looking after your finances and can be appointed as your property and finance attorney.

When you make a lasting power of attorney, you can incorporate preferences to help guide your attorneys. This can include the type of care you would like to receive or a specific care home in which you would like to live. Such preferences must, however, be legally permissible. Seeking professional advice about lasting powers of attorney will ensure that the documents are drafted in line with both your wishes and the law.

End of life

Family members might be asked some very difficult questions by healthcare practitioners, and this can be a big burden to carry if they are not sure of your precise wishes. Again, simply talking through those wishes with your family goes a long way to ensuring you are as content as possible in your last moments.

Whilst the medical staff involved in your care will usually consult with family, only those named as an attorney are able to make any final decisions on your behalf.

If you have a long-term or terminal condition, you may be offered a DNAR form by your medical team. DNAR stands for ‘do not attempt resuscitation’. A DNAR form is not, however, legally binding. An alternative document, to consider is an advance decision. Advance decisions (sometimes, colloquially, referred to as living wills) allow you to specify any treatments you wish to refuse, including life-sustaining treatments, even if these were to become necessary. However, if your advance decision legally conflicts with your health and welfare lasting power of attorney, the document which was signed most recently will take precedence. This is a complicated area of law, on which it is best to seek professional advice.

Choosing attorneys

Most of all, it is vital that your attorney is somebody who you trust. Discussing your wishes with them can help to ensure you are appointing the right person. Attorneys must adhere to strict guidelines when dealing with your affairs, including involving you in the decisions they make on your behalf. This may not always be easy so, again, it is absolutely key that you discuss your wishes with your attorney in advance. If you have appointed someone who you do not feel comfortable having these discussions with, it is likely that they are not the right person.

Organ donation

The rules surrounding organ donation changed from 20 May 2020. Instead of voluntarily registering as a potential organ donor, there is an opt out system. This means that it will be deemed all adults in England and Wales agree to donate their organs after death.

If you do not wish for your organs to be donated, you will still have the option to opt-out. If you have specific wishes, such as wanting your organs to be donated for medical research surrounding a particular illness, you can include such wishes in your Will.

Appointing executors in your Will

Your power of attorney cannot be used after your death to deal with your finances and the executors appointed in your Will become responsible for dealing with your estate.

Even though named in your Will as an executor, that person is not obliged to take on the responsibility and so you should make sure that you ask them first and that you help them to understand what the role involves.

Funeral arrangements

Planning a funeral can be made easier by setting out your wishes in advance. Your Will can include wishes as to religious preferences, the music you would like to have played, or any specific flowers or charitable donations that you would like.

Prepaid funeral plans have become increasingly popular in recent years. Planning and paying for your funeral in advance means that the ceremony can take place exactly as you wish. It also means that the expense will not have to be met from your estate or by your family or friends.

An alternative is to leave a set sum of money to a particular person for the purpose of planning and paying for your funeral. You can then make sure that person is aware of your wishes and will plan the celebration you want. You do need to be careful about this type of arrangement, though. If not worded carefully, the money could be construed as a direct gift. Also, if you only tell one person your wishes, they may no longer be around to implement them on your behalf.

Your online accounts

Your executors will need to be aware of all your bank accounts, savings, debts, and sources of income so that they know who they should contact when the time comes. Leaving a list of these details with your Will is extremely helpful.

If you do need to provide passwords for accounts, one of the benefits of having your Will professionally prepared is that it will be securely stored on your behalf and your list of passwords can be securely stored along with it, alleviating any worry about others accessing your passwords whilst you are still alive.

Anticipate problems

Is there someone who might disagree with your wishes, either before or after your death? Whilst we all have freedom of choice to decide who we would like to inherit from us, there may be circumstances under which a claim could be made against your estate. Discussing your wishes with those closest to you can also help them to understand your choices and prevent any such claims arising. If you are worried about a dispute over your estate, you should seek the views of a professional.

For further information or advice on any of these issues, please contact Aneesha Dhami in the Private Client team on 01732 770660 or email a.dhami@warners.law Warners Solicitors has offices in Tonbridge and Sevenoaks, Kent.

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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