Assisting Clients To Manage Their Affairs

With the threat and uncertainty surrounding the coronavirus many practitioners will be asked to prepare documents that assist clients to manage their affairs should the need arise.

By Lawyers commentary and precedents for Wills, Powers of Attorney and Advance Decisions (Living Wills) are available online to assist practitioners in responding to these requests.

In brief:

• A will provides for the administration and distribution of one’s property in the event of their death. 
• A power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs on request. However, this power ceases should the principal lose capacity to authorise its use. This power can be witnessed by any adult.
• A lasting power of attorney authorises an attorney to act in either the donor’s health and welfare matters, or in money, finances and property matters, or both. These types of powers are only effective it they are registered but continue even if the principal loses the capacity to authorise it’s use.
• An advance decision or ‘living will’ allows a person to document their wishes and values regarding medical treatment. The lasting power enables an attorney to make the decisions whereas the living will enables a person to set out their own choices.

The By Lawyers Wills, Powers of Attorney and Advance Decisions publications provide retainer instructions and to do lists to ensure thorough and complete attention to all possible considerations. 

Where personal attendance is not possible, we would recommend that instructions be taken via a video conferencing method. Taking instructions over the telephone is not considered a suitable alternative as it would be difficult to assess capacity and other potential issues.

Please note it is important to follow all of the usual compliance procedures, including identifying the client appropriately. 

There is a full suite of wills for single people, people with a partner, and for people with blended families, as well as testamentary trust wills. Also provided are signing clauses for wills by the physically disabled, blind, non-English speaking and illiterate testators. 

The difficulty with these documents is of course that execution by the client will be difficult where personal attendance at the office cannot take place. Detailed signing instructions are available and can be emailed to the client with the will should they have access to two disinterested parties, for example nursing staff, to act as witnesses. 

At the time of writing, a will which is not witnessed by two physically present witnesses in accordance with the Wills Act 1837 is not valid. However it is possible to supervise the signing of a will using electronic means. Clients could be asked to video record the signing of the will if possible and good file notes on how instructions came in and how the will was signed should be kept. 

If there is absolutely no alternative, the practitioner could witness the execution via teleconference and this alternative may, in the prevailing circumstances, be considered valid so long as it is supported by strong evidence of the testators wishes.

Clients should be encouraged to execute new wills in the correct manner in due course.  

The Law Society with STEP and Solicitors for the Elderly are seeking temporary legislative measures to help practitioners and clients to better manage the process of this documentation. 

For further information please contact us at askus@bylawyers.co.uk.