A power of attorney is a legal document giving someone the authority to act on your behalf. There are two different types of power of attorney available, depending on your situation.

Ordinary power of attorney

If you want to enter into a legal transaction but are unable to sign the documents in person, for example, because you will be away, an ordinary power of attorney can grant someone else the authority to sign on your behalf.

This can be a useful tool if you are selling or buying a property and you know you won’t be around to execute the necessary paperwork. By making sure you have appointed someone to deal with the proceedings in your absence you minimise the risk of a sale or purchase falling through because of a delay.

The power of attorney can be specifically drafted to cover a single transaction and can be limited to certain assets. In the event that the person who has executed the power of attorney should lose mental capacity to act, then the power of attorney becomes invalid.

Enduring power of attorney

Conversely, an enduring power of attorney is specifically set up to give someone the power to deal with your affairs on your behalf, should you lose the ability to do so yourself. Without an enduring power of attorney in place, your loved ones would not be able to make any decisions or pay bills on your behalf and would need to make a lengthy court application for permission to do so.

Who should you give enduring power of attorney to?

Acting as an attorney for someone is a responsible job and can be time-consuming and complicated. It is important to choose someone who you trust absolutely, but who you also believe will be willing and able to act in this capacity. You should choose someone who will not be elderly themselves when the time comes, as they may not be in a position to take on such an onerous role.

You can choose more than one attorney if you wish, up to a maximum of four. You should bear in mind that if you do have more than one, they will need to get along with each other. You can give them each the power to act separately on your behalf, or alternatively require them to act jointly at all times.

What decisions can your attorney make on your behalf?

You can specify exactly what your attorney may do on your behalf and which assets they may deal with. For example, you can grant them power over all your property and affairs, or just over payment of bills or the sale of your home.

When will an enduring power of attorney come into force?

You may wish to grant an enduring power of attorney that can be used immediately, even if you are still able to manage your own affairs. This can be useful in the event that you find it difficult to travel to your bank or other financial institution.

Alternatively, you can stipulate that the attorney can only act on your behalf once you are unable to manage your own affairs. In that event, the attorney will need to apply to the court to register the enduring power of attorney and must provide medical evidence that you have lost the mental capacity to act on your own behalf.

Legal advice

Because a power of attorney gives away your legal authority, you should always seek independent legal advice before signing. You should also ensure that the document is properly drafted and that it covers exactly what you want it to cover and nothing else. If the power is ambiguous or flawed, disagreements can arise, which can result in family disputes and even legal action.

If the power of attorney is clear and well-written, the risk of misunderstanding will be minimised. At Quinn Legal we are experienced in drafting powers of attorney to cover all eventualities. We will discuss your needs and advise you on the type of attorney and the powers that it should include.

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For a no obligation initial consultation or to make an initial free enquiry, please feel free to ring us on 01624 665522 or email us: hello@quinnlegal.im.

Alternatively, you can Make An Online Enquiry and one of our team will be in touch with you as soon as possible.

Thanks again for all the help and going above and beyond. It is very much appreciated.

If you were to die without a will, then you would be dying ‘intestate’.

Whilst nobody wants to think about their own mortality, dying intestate could have severe consequences for your loved ones. When you die without a will, the law ultimately dictates who gets what from your estate – a process carried out through the ‘rules of intestacy’.

Rules of intestacy

The rules of intestacy specify a rigid order of who inherits what from an estate, with the highest on the list taking priority. This is as follows:

Under the rules, if the deceased has no children, the entire estate will pass to the spouse. If the deceased died leaving a spouse and children, then all personal possessions, the first £250,000 and one half of the remainder of the estate will pass to the spouse.  The other half will be split between the children – therefore, if you are married, your spouse might inherit the bulk of your estate, leaving your children with little or nothing

If the deceased has no spouse or children, the estate will pass down the list to the next class of relatives, i.e. the parents.   

If there are no living relatives, the estate goes to the Treasury in what is known as ‘bona vacantia’.

Common challenges if you don’t have a will

The difficulty with the rules of intestacy is that they don’t take into account varying family dynamics. Contrary to popular belief, children are not top of the list and the rules don’t include, unmarried partners, ex-partners, stepchildren or friends. No matter how close or how long your relationship may be with someone, there is no automatic right of inheritance for people not on that list of relatives.   

Any assets you jointly own will not fall under the intestacy rules – instead they will pass to the surviving joint owner. Note: assets must be owned as ‘joint tenants’ not ‘tenants in common’ for this to apply.

For example

Sam has been married to Fiona for 10 years – he has three children from a previous marriage. Together, Sam and Fiona co-own a property worth £350,000 as joint tenants. Sam also has £100,000 of his own money in his bank.

Because he has wrongly assumed that his assets would be split between his wife and kids equally, Sam has always put off making a will.

Sam dies intestate. Under the rules of intestacy, the property automatically goes to Fiona. This leaves £100,000 left over – a figure which falls under the £250,000 threshold. As such, all of Sam’s estate also go straight to Fiona and his children inherit nothing.

But the issues aren’t all financial…

• If you die intestate, then the courts will decide who has guardianship over your children. They could end up in the care of someone you wouldn’t ordinarily choose to look after them.
• Your personal possessions will automatically fall under the rules of intestacy and something that holds deep sentimental value could end up in the wrong hands.

Who sorts the estate out?

An administrator (i.e. a member of your family)

When a person leaves a will, they will have appointed an Executor to deal with their estate – someone they are close to and who they trust to handle their affairs. Without a will, the rules of intestacy also determine who will act as administrator for the estate.

Again, this conforms to the hierarchy of the rules, so a spouse would be entitled to apply to be an administrator before children, for example.

An advocate or probate specialist

Sorting out an estate without a will is complicated and can take months, sometimes years, to complete the process. Your family members would likely hire an advocate or probate specialist to speed things up and simplify matters.

However, the process will still take significantly longer than if you’d left a will and incur lots of additional costs as well as anxiety and heartache for those left behind; is that a price you are willing to pay?

Making a will without the fuss

At Quinn Legal, we fully understand making a will may seem like an unpleasant task, so our friendly and sympathetic team want to make the job as quick and as simple as possible without stress or hassle.

Unlike many other law firms, we won’t try and sell you a ‘standard will’. We will take the time to get to know you and understand your needs before creating a will unique to you and your personal situation.

We offer a no obligation initial consultation where we will discuss your needs and then provide you with a fixed-fee quote for the work we propose to undertake.

This includes drafting your will as well as storage and regular reviews to give you peace of mind that your affairs are in order.

And our rates are very competitive.