High Risk Half-Term Activities: Considering the issue of Capacity, Wills and LPAs
With half-term week approaching, we can expect to see many people attempting to banish those January blues by taking a well-earned holiday abroad. Whether it’s hitting the slopes for a ski or snowboarding trip, a diving trip, horse riding there will be a range of high-risk activities enjoyed by people of all ages.
No one likes to think about these things happening to them, but nevertheless, having a Will and Lasting Powers of Attorney (LPAs) is an important thing to consider in order to protect yourself or your family should you lose capacity.
Everyone should consider making a Will and LPAs, but for those who regularly take part in high-risk activities, it’s even more important to have these documents in place. A Will and LPAs are not just for the elderly and should be put in place by everyone to protect themselves and their families.
Capacity
A person wishing to make a Will or put in place LPAs must have the mental capacity to do so. There are different capacity tests for creating both a Will and LPAs but in broad terms, they have to understand the decision and the terms of the document.
Under the Mental Capacity a person is assumed to have capacity unless proven otherwise. The person should be supported to make their own decisions where they are capable of doing so. Mental capacity is assessed on a case-by-case basis (it is decision specific) and at the specific time they are making the decision. So, a person might have the capacity to make one decision but not another more complex decision at any given time.
Lasting Powers of Attorney
When a person is living with dementia or has had a brain injury it is likely their capacity will fluctuate and deteriorate over time. It is therefore essential LPAs are signed by them whilst they are able to do so to ensure people they trust, can manage their affairs when they become unable to do so. Without an LPA no-one will have the legal authority to manage their affairs and in those circumstances, someone will need to apply to the Court of Protection to become their deputy.
There are two types of Lasting Powers of Attorney; one for Property and Financial Affairs and another for Health and Welfare. We recommend both LPAs are put in place to ensure the person can be supported in every aspect of their lives. Different attorneys can be chosen for the different roles according to either the attorneys relationship to the person making the LPA, or their strengths in those different areas.
The Property and Financial Affairs LPA can be used by the Attorney before the person making the LPA has lost capacity. However this can only be done with their permission and they must be allowed to make their own decisions where they are capable of doing so. This can be helpful for someone who’s capacity fluctuates, or for someone who may have the capacity to make their own decisions but cannot physically implement those decisions for example, they are unable to leave the property or sign a document.
The Health and Welfare LPA, can only be used when person who has made it no longer has capacity to make the particular decision. Someone with dementia or a brain injury may lose capacity to make the different decisions gradually, for example they might have capacity to make some care decisions, but not others.
Creating a Will
Without a Will in place a person’s estate will pass according to the rules of intestacy. The rules of intestacy often do not cover modern day families and it is unlikely the estate will be distributed to the beneficiaries you would wish. As the estate is split between spouses and children this can leave spouses in a difficult position. The estate may also not be passed down in a tax efficient manner. We therefore recommend everyone makes a Will to ensure your estate is distributed in accordance with your wishes.
A valid Will ensures that your assets pass according to your wishes. Everyone when making a Will should consider the following:-
- Who should benefit from their estate and who subsequently benefits if those beneficiaries have died before them
- Who should administer the estate
- Whether funeral wishes are to be included in the Will
- Whether there are specific items that need to be distributed
- Appointing guardians for minor children
- Provision is made for children to inherit at a later age, so that the funds are held in trust for them and used for their benefit until they are older
- Whether there is anyone else who is financially dependent who needs to be included in the Will
- Whether inheritance tax is payable on the estate and if so how this will be paid
A Will must be made when you have capacity to make this. So, as with LPAs it is important this is not left too late. It is therefore, very important that those involved in high risk activities take advise on their Will and ensure this is in place.
Summary
Accidents or illness can happen to anyone at any stage of their life, so making sure you protect yourself and your family in the event this happens is not just something the elderly should do.
Those who ski, horse-ride, or cycle should be particularly aware of the risks of injury as life-changing accidents can happen in seconds leaving no time to get documents in order. Creating a Will and LPAs allows for peace of mind, not just for the person putting them in place, but for their whole family too.
If you’d like more information on how we can help you get these important documents in place, visit our website.
In the event of an accident Irwin Mitchell’s International Serious Injury team may also be able to help you recover compensation to help with any recovery and rehabilitation costs, lost earnings and the costs of any specialist treatments you may need.
