Getting your affairs in order

28 Apr 2020 | Jenny Walsh

“I want to get my affairs in order” is the phrase I have heard the most over the last few weeks, both from new client and existing clients. Now is a good time to sit down and think about what this means for you.

Most people assume this means ensuring they have an up to date Will in place, which of course is very important. However, it is also essential to consider who will look after your financial or healthcare matters if you become ill.

Making a Will – current challenges posed by social distancing

The law surrounding the execution of a will is very old (from 1837!) and may seem archaic and impractical in the current circumstances. The law states that a Will must be in writing and must be signed by the person making the Will (the “testator”) in the presence of two independent witnesses, who should then also sign the Will in the presence of the testator.

The requirement for all three people to be present at the same time whilst maintaining social distancing is particularly difficult, especially if the testator is in quarantine and unable to ask witnesses to be present in the same room.

The meaning of the word ‘presence’ is now more significant than ever and there has been talk in the legal press as to whether Wills can be witnessed by video conference such as Skype. Unfortunately this doesn’t appear to be possible due to the strict requirements as detailed above, so what can be done?

The important point is that witnesses must be present and this can be accomplished in various ways. The Will could be signed in an open area e.g. a garden or park, or perhaps even over the garden fence! There is also some very old case law from 1781 which states that as long as the Will was signed ‘in the line of sight’ of the testator and witnesses, even if from another room and through a window, it was held to be valid. This point was upheld as good law in 2011 when a power of attorney was witnessed from another room separated by a glass door.

When a client makes a Will with us in the current situation, we are also offering them the opportunity to have their Will re-executed in our office after the lockdown period has ended, to avoid any confusion about when or how the Will was signed.

Looking after your financial and health matters

Lasting Powers of Attorney (‘LPAs’) are legal documents that give your chosen attorney the legal authority to make decisions for you (‘the donor’) if you cannot do so yourself. They take two forms – one for property and financial matters and another for health and welfare matters.

LPAS are particularly useful for helping the elderly and vulnerable as they may struggle to manage their own financial matters or make decisions in relation to their healthcare. In the current situation it is challenging to take instructions from someone who is isolating or who is in a care home. However, it can be done – discussions can be held over the telephone or via a video conference where possible.

We continue to post documents to the donor for signature. The main issue to overcome is the need for a certificate provider, that is someone who can certify that the donor has the mental capacity to sign the LPA but we could discuss with the care home, carer, doctor or nurse as to how best to overcome this difficulty. It is also possible for an independent person who has known the donor for longer than 2 years to act in this role.

Whilst LPAs are a great tool to help the elderly and vulnerable they can also be useful when you are temporarily incapacitated too, for example you are in hospital or not well enough to look after your own financial or healthcare matters. It is, therefore, important to consider putting an LPA in place now even if you think it may not be needed for some time.

Blog post written by Jenny Walsh, solicitor in the Wills & Probate team.

 

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