Wills and power of attorney

A General (or ordinary) power of attorney (POA) is the most straightforward POA which can be made. It's often used for one-off events and should be for limited periods of time only. It allows you to appoint someone to be your 'attorney' - usually a friend or relative - which gives them the legal authority to sign documents and manage affairs on your behalf. This can be useful in the situation where an important transaction like exchanging contracts on a house is taking place if, for example, you're going to be abroad or in hospital. It's important that the person who is appointed to be your attorney is someone who will act in your best interests as the POA will give them the ability to make decisions and deal with your affairs on your behalf. For further information, read General powers of attorney.

You can appoint more than one attorney (as long as they are over the age of 18 and not bankrupt) but you'll need to set out the decision-making process in advance (ie do they need to act jointly or severally). Once you no longer require the POA or if you become unhappy with one of your attorneys, you should revoke it immediately using a Deed of revocation. For further information, read Revoking a power of attorney and lasting power of attorney.

A Lasting power of attorney (LPA) is similar to a general power of attorney but it's designed to last indefinitely and to deal with the situation where you lose the mental capacity to make decisions. Not only do LPAs allow your attorneys to deal with your property and financial affairs but they additionally grant them powers to make health and welfare decisions on your behalf. It's possible to restrict powers and provide guidance for certain situations.

One or more people over the age of 18 who are not bankrupt can act as attorneys under an LPA and you can also appoint substitute attorneys, should one become unavailable to act on your behalf. The big difference between a lasting power of attorney and a general one is that the LPA must be registered before it can be used. Also, LPAs are intended to be used in circumstances where you've been diagnosed with or think you might develop, an illness that might prevent you from making decisions for yourself at some time in the future. LPAs must be registered with the Office of the Public Guardian in order to be valid. Ask a lawyer for more information on LPAs or read Lasting powers of attorney.

If you are in Scotland, you may make a ‘Continuing Power of Attorney' (CPA), a ‘Welfare Power of Attorney’ (WPA) or a combination of both. A CPA is a power of attorney relating to your financial and/or property affairs and can either take effect immediately or take effect if you lose capacity. A WPA is a power of attorney which allows someone you have appointed to make welfare decisions for you; a WPA will take effect on you losing the capacity to make these decisions.

Powers of attorney must be certified by a lawyer or medical practitioner. They must also be registered with The Office of the Public Guardian in Scotland and will not take effect until they have been registered accordingly. 

For more information, read Power of attorney in Scotland or Ask a lawyer.

A Living will is where you express your wishes about how you want to be treated and cared for in certain situations. It refers to the advance statements or decisions you make about your care and wellbeing for the future. An advance statement is where you set out your likes and dislikes and your preferences about how you want to be cared for in the case where you can't make your own decisions. 

An advance decision to refuse medical treatment refers to the situation where you can refuse some medical treatments you don't want to receive. It deals with circumstances in which you might not want to be kept alive artificially and allows you to set out specific instructions. You can only create a living will if you are of sound mind and you should discuss the matter with your GP and your family first. An advance decision is legally binding and those caring for you must follow your instructions, even if refusing medical treatment may lead to your death. 

If you want to have a living will and an LPA you should Ask a lawyer for advice, as they can potentially conflict with each other. You should also Ask a lawyer if you want to create a living will and already have in place an LPA.

Making a Last will and testament (or a Last will and testament for Scotland) is a crucial way of ensuring that your assets are distributed according to your wishes upon your death. Many people assume that their spouse or other specific individuals will inherit their property but, in the absence of a will, the 'intestacy rules' will determine what happens to your estate. If you have a partner who is not a spouse or civil partner, they will not necessarily be entitled to anything under these rules, so it's particularly important to have a will in this situation. For further information, read Intestacy rules and Intestacy rules in Scotland.

If there are any major changes in your life (eg the birth of a child, separation or divorce or dramatic financial changes) you must consider updating any existing will to take account of the new circumstances. For further information, read Reasons to make a will.

Initially, you'll need to choose your executors (or executrixes). These are the people who will carry out the wishes contained in your will following your death. There can be up to four executors (or executrixes) and they can also be beneficiaries under the will. 

In England and Wales, once they receive a grant of probate (which confirms that your will is valid) they can collect your assets, pay off any liabilities and distribute the legacies to your beneficiaries. For further information, read Probate. In Scotland, the executor(s) can apply for a grant of confirmation which grants them access to the deceased’s money and property, allowing them to ‘administer' the estate. For more information, read Confirmation in Scotland.

If you have children, you may want to appoint 'testamentary guardians' who will take over the role of parental responsibility if any of them are under 18 upon your death. You should also decide whether to leave any cash legacies, make any special bequests and how to apportion the rest of your estate. For more information, read Appoint a guardian.

In terms of correctly executing (ie formalising) your will, you need to ensure that it is signed in the presence of two witnesses. These witnesses must be over 18, cannot be executors or beneficiaries of your will and must not be related to you or to anyone mentioned in your will.

For further information read Making your will and Executing a will.

An Affidavit is a sworn statement of truth. It can be used in many different types of personal or business circumstances. The affidavit must be made voluntarily and under religious oath or affirmation. It must be signed (or 'sworn') in front of a person commissioned to receive oaths (such as a solicitor), who will then also sign the document. An example of when an affidavit is used is when a breeder of dogs is making a sworn statement in front of a solicitor that puppies are of a certain pedigree. Affidavits are also used in court proceedings, where a witness is not present at trial or during divorce or probate proceedings. Ask a lawyer if you need a witness statement or statutory declaration, as an affidavit should not be used in this case.

When you pass on assets, such as money and property, they may be subject to inheritance tax if the value of the assets is above a certain threshold. The executor (or executrix) of a will are responsible for calculating any inheritance tax due and must ensure that it is paid to HMRC. For further information, read Inheritance tax.