Lifetime Planning FAQs
Frequently asked questions about Lifetime Planning
You can find answers to some of the most frequently asked Lifetime Planning questions by clicking each of the links below.
You can also view these along with answers to other commonly asked questions about our legal services on our main Frequently Asked Questions page here.
Appointing a Guardian
A guardian is someone who has the legal right and responsibility to take care of another person who cannot manage their own affairs. This often applies to children whose parents have passed away. Guardians ensure the well-being of those under their care and may also protect certain assets or interests. For instance, a guardian can be the custodian of a child’s welfare or serve as the protector of a specific cause or property.
Appointing a guardian is a crucial decision, especially if you have minor children. Here’s why it’s essential:
Child Welfare: If you pass away, a guardian ensures the well-being of your children. They take on the legal responsibility to care for your children until they turn 18.
Your Choice: By appointing a guardian in your will, you have a say in who will look after your children. You can choose someone you trust and believe will act in their best interests.
Parental Responsibility: Guardians gain parental responsibility, allowing them to make decisions about your children’s health, education, and living arrangements.
Avoid Court Decisions: Without a designated guardian, the courts may decide who cares for your children. Appointing one ensures your wishes are respected.
Financial Protection: Guardians also manage any assets left for your children, ensuring their financial well-being.
Choosing a guardian is a deeply personal and significant decision. The person you select will assume parental responsibility if the guardianship clause in your will becomes effective. This means they will be legally responsible for your children and empowered to make decisions on their behalf regarding education, health, and finances. Therefore you need to give thought to the following key points:
- Who is going to genuinely act in the best interest of your child/children and who would be in a position to raise them as you would want, look after them and ensure they have everything they need to grow and develop?
- Think about the lifestyle, background and character of the potential guardian. This should include their age, health, fitness and financial stability as this is important both for the guardian themselves as well as the future of your child/children.
- Make sure you have had open and honest discussions with any future guardian to be sure they are not only willing to take on the responsibility, but that they understand your wishes and agree with them.
Lasting Power of Attorney (LPA)
A lasting power of attorney (LPA) is a legal document that allows you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. The term ‘lasting’ indicates that your LPA remains valid even if you lose the ability to make decisions independently. LPAs serve as practical and versatile tools. Depending on the terms outlined in the LPA document, they grant your attorneys a broad range of decision-making powers. Some LPAs can also be utilised while you still have the capacity to make decisions for yourself.
Lasting Power of Attorney (LPA) for Property and Financial Affairs empowers your attorneys to make decisions regarding your finances and property. This includes tasks like paying bills, managing bank accounts, selling property, and handling investments. Notably, with this type of LPA, you can specify that your attorneys can act even if you still have mental capacity. This flexibility proves valuable when you no longer wish to manage certain financial matters yourself. Additionally, it assists in situations where you’re leaving the country but still have assets requiring management.
Lasting Power of Attorney (LPA) for Health and Welfare empowers your attorneys to make decisions related to your health and well-being. This encompasses aspects of your daily life, such as dietary choices and clothing preferences. Additionally, it covers medical treatment decisions, care home arrangements, and the option to refuse life-sustaining treatment.
The terms you specify in your LPA document define precisely what your attorneys can or cannot do on your behalf. You might choose to limit your attorneys’ powers in certain ways. For instance, you could authorize them to handle only a portion of your finances. Alternatively, you may prefer that attorneys appointed under a Health and Care LPA are not allowed to make decisions regarding life-sustaining treatment on your behalf.
While there is no strict limit on the number of attorneys you can appoint in your LPA, we recommend having at least two. This precaution ensures that if one attorney becomes unable to fulfill their duties, there will always be another attorney available to act on your behalf. When choosing your attorney you should consider 1) would they act in your best interest 2) do they have the capacity to carry out this role, mentally and physically 3) have you discussed this with them to ensure they are willing to take on this role and happy to act in your interests throughout.
You can cancel or revoke all or part of your LPA at any time, even after the LPA has been registered. The only requirement is that you must have the mental capacity to make this decision at the time.
Appointing Executors and Trustees
Executors and Trustees play crucial legal roles in relation to wills and trusts. These roles come with significant powers and responsibilities. When creating a will, you must carefully consider whom to appoint as your executor(s). They will be instrumental in managing your property and ensuring it is passed on to your loved ones after your passing. Appointing trustees may not be necessary for everyone. You’ll only need to do so if you establish a trust during your lifetime or if your will creates any trusts. Nevertheless, it remains essential to select the right individuals as trustees to effectively oversee and manage trust assets.
Executors manage the affairs of a deceased person based on their will. Key duties include notifying beneficiaries, filing the will with the probate court, collecting and managing estate assets, assessing estate value, settling debts, and distributing assets to beneficiaries.
When considering whom to appoint as an executor, there are only two straightforward criteria: 1) Mental Capacity: The person must be of sound mind. 2) Age Requirement: They should be at least 18 years old. Additionally, there is no issue with appointing a beneficiary from your will as an executor and you have the option to designate a corporate entity, such as a law firm.
The responsibilities of trustees generally fall into two main areas: 1) Custodianship and Preservation: Trustees hold and safeguard the trust property, ensuring its value is maintained. 2) Adherence to Trust Terms: Their duty is to preserve the assets for the benefit of the beneficiaries. Trustees must follow the terms outlined in the trust document, ensuring that the trust serves its intended purpose. Different types of trusts exist for various purposes, and the specific powers and obligations of trustees can vary significantly.
When considering whom to appoint as Executors and Trustees, it’s essential to approach the decision thoughtfully. Unsuitable appointments could potentially disrupt estate administration or trust management. In rare cases, mismanagement might lead to costly legal disputes, affecting the value of your estate or the trust assets passed on to beneficiaries. Consider the following:
- Think about your reasons for appointing someone and how they may feel about the responsibility. Are they trustworthy, reliable and would they take the position seriously? Also do they have the capacity to take on this role, is it a simple or complex estate?
- Are there any relationship issues between your chosen appointment(s) and the beneficiaries of the will which could result in a conflict or create difficulties?
- Discuss your intentions with the chosen appointments to ensure they are aware and prepared for their roles. This can avoid any issues down the line as they can decline their appointment in writing so be sure of their willingness beforehand.
- Make sure your appointments are outlined in the legal documentation promptly so as to give effect to your intentions at the earliest opportunity.
If you need to appoint both Executors and Trustees in your Will, it is common to appoint the same people to carry out both roles.
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