The short answer to this question is, no, you don’t. But let’s look at this in more detail.
A Lasting Power of Attorney offers you protection and comes into effect when you are still alive while a Will allows you to decide your asset distribution and comes into effect only after your passing.
What is a Lasting Power of Attorney?
If you become unable to make certain decisions for yourself in the future, someone will need to make these for you. A Lasting Power of Attorney (LPA) is a legal document that enables you – the donor – to give one or more people – the attorneys – the right to make decisions on your behalf. There are two types of LPAs, and these are:
- Health and Welfare LPA: this allows you to name someone whom you would like to make decisions about your healthcare on your behalf when you no longer have the capacity to.
- Property and Financial LPA: this allows you to name someone to deal with your finances and property when you are no longer able to do this yourself.
With an LPA, you can decide if these attorneys will be making all of your decisions or just some of them.
What happens when you don’t have an LPA?
You might assume that your spouse or someone you are in a civil partnership with would automatically be able to make these decisions when the need arises. This is however not the case as, without an LPA, they have no authority to do so. The only option they would have would be to apply for a deputyship order at the court.
This process can take several months to complete and can be expensive. When it does come through, it might be challenged by other family members. In the midst of all this, decisions would be left unmade.
A will, more formally called ‘A Lasting Will and Testament’ is a legal document that gives instructions about how you want your assets to be distributed. With a will, you decide what goes to whom, in what proportions, who your executors are, and who the legal guardians of any minors would be.
What happens when you don’t have a will?
When you don’t have a will, you lose the privilege of deciding how your estate will be distributed, and your assets become subject to the Laws of Intestate Succession.
In most common law jurisdictions, the act of intestacy mimics the common law of descent. Your property goes first to your spouse, then to your children and their descendants.
In the absence of (any of) these, the law goes back up the family tree to your parents, siblings, your siblings’ descendants, grandparents and on and on.
Difference between an LPA and a will
An LPA offers you protection and comes into effect when you are still alive while a will allows you to decide your asset distribution and comes into effect only after your passing.
Should I have a lasting power of attorney in my will?
No, you shouldn’t. After your death what you lose is life and not mental capacity, which is what an LPA covers. You could however have both, as one serves in your interest when you are alive and the other after your death. Together, they provide ongoing cover for your assets.