Coronavirus (COVID-19) FAQs regarding Wills and Powers of Attorney

The continuing effects of coronavirus (COVID-19) remain uncertain. Understandably, many people are concerned about its potential impact upon them and their loved ones. Aaron Spencer, Partner and Head of Private Client has provided answers to some common questions clients are asking at this difficult time.

You should check the Government website for the latest guidance in conjunction with this article, as the guidelines on the coronavirus (COVID-19) are changing daily.

Q 1 – My will is several years old; do I need a new one?

You should review your will regularly. A good rule of thumb is every time there is a significant change in your circumstances or every five years. This does not necessarily mean your will needs to be amended with each change of circumstances, but you should at least make sure it continues to reflect your wishes.

Although it is important to maintain an up-to-date will, making rash changes during a time of distress is ill-advised. If you are unsure, you should seek advice about whether your will needs updating.

Q 2 – My will no longer reflects my wishes, but I am self-isolating. How can I make a new will?

To support those in self-isolation, and in line with social distancing guidelines, instructions for a new will can be taken via telephone or video call.

Unfortunately, signing your will is more problematic. When you sign your will, two people must witness your signature. Witnessing via video link is not sufficient. However, your witnesses need only be ‘in line of sight’ of you when you sign, and they could witness you signing through a window or over a garden fence. We can make arrangements for your will signing suitable for your individual circumstances.

Q 3 – I have coronavirus and have not made a will. What will happen to my estate if I do not survive?

If you die without a valid will, your estate would be dealt with under the rules of intestacy. Exactly how the rules apply depends upon your family circumstances, as well as the value of your estate.

In general terms, a spouse or civil partner and any children would have the highest priority. After this, more remote members of your family could inherit, or your estate could even end up passing to the crown. By making a will, you can ensure that your assets pass according to your wishes and not in accordance with predetermined law.

Q 4 – I have coronavirus and am worried about inheritance tax. Should I give money to my children while I am still alive?

Making gifts during your lifetime does not necessarily escape inheritance tax. If you make a gift and you do not survive for seven years, the gift is still considered part of your estate when you die.

You should also carefully consider your own needs before gifting money. Once you part with an asset, you also part with all rights to it. The only way this can be reversed is if the person receiving the gift chooses to return it. Before making any gift, you should always seek advice.

Q 5 – My elderly relative is self-isolating and cannot get to the bank. How can I help?

Without authority, you cannot access another person’s bank account. Authority might be as simple as putting something in place with one specific bank, or it could mean your relative granting a power of attorney.

A property and financial affairs lasting power of attorney will grant authority to deal with financial affairs, including day-to-day banking. The process is, however, rather lengthy, as lasting powers of attorney must be registered with the Office of the Public Guardian. If your relative has capacity and only requires your help during this specific time, a general power of attorney may be more appropriate, though a general power of attorney does have limits. Your relative should seek advice on the best solution for them before signing any legal document.

Q 6 – I am an attorney for someone who is self-isolating but who has capacity. Should I start acting for them?

If you are appointed under a Property and Financial Affairs Lasting Power of Attorney, you may only be able to act if the person who granted the power no longer has capacity. In some circumstances, you could act sooner if they ask you to. This depends upon the individual power and you may, therefore, have no authority to assist with their financial affairs at present.

You should also note that if the person has made a Health and Welfare Lasting Power of Attorney, this may only be used if they lack capacity. They cannot delegate their health and welfare decisions. Everybody is presumed to have capacity unless it is proven otherwise. If you are unsure about whether you should be acting, you should seek legal advice.

Q 7 – I have coronavirus. I am an attorney or deputy for a vulnerable person who does not have capacity, I usually visit every week and am worried they will be confused or upset if I do not appear. What should I do?

In your role as an attorney or deputy, the best interests of the person you are acting for must be central to every decision you make.

At present, the Government advice is clear. Everybody should be social distancing and those who are particularly vulnerable should be self-isolating. If the person you are acting for lacks capacity they may not understand the need for self-isolation, and you should help to ensure that this occurs by stopping your usual visits.

It is also important to help them feel secure and cared for. Isolation can be particularly distressing if someone is unable to understand why they are going without visitors for long periods.

You could try staying in contact via telephone, or by sending letters, to help ease the loneliness. It is vital that attorneys (or deputies) and carers work together for the best interests of the person they are looking after. Now, more than ever, you should ensure that you are in regular contact with the person’s care team to ensure their needs are being met.

For further information or legal advice on any of these issues, please contact Aaron Spencer on 01227 763939.