Insights from the Institute of Professional Willwriters

The Importance of Professional Will Writing

The world of will writing isn’t regulated, which can leave individuals vulnerable to errors and invalid documents. This is where organisations like the Institute of Professional Willwriters (IPW) play a crucial role. Established in 1991, the IPW is a national body with around a thousand professionally trained members dedicated to drafting wills and powers of attorney. They adhere to a code of practice set by the Chartered Trading Institute, ensuring clients receive trustworthy and accurate services.

John emphasised that a properly drafted will is “really, really critical.” He’s seen firsthand the devastating implications of improperly written or DIY wills, from a solicitor mistakenly attempting to give away a wife’s assets to “DIY type wills” that were invalid due to incomplete sentences or incorrect signing. Such errors can lead to immense family disputes, significant legal costs, and profound emotional distress, potentially even impacting the ability to fund necessary care services like live-in care in the future.

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What Exactly is a Will and Why Do You Need One?

At its core, a will is a legal document that appoints executors to carry out the wishes of the person making the will (the “testator”). It remains private until the testator passes away, at which point the executors apply for probate, which is the legal authority to act upon the will’s instructions.

John highlighted that beyond simply outlining who gets what, a professionally drafted will is vital because:

• Laws and tax rules constantly change: What was correct yesterday might not be today, making professional advice essential.
• Wording is critical: The precise language used in a will can significantly impact how wishes are interpreted and executed and can even protect assets for future care needs.

The Benefits of a Will: Clarity, Certainty, and Peace of Mind

“People often talk about peace of mind,” Luca noted, asking about the tangible benefits a will provides. John pinpointed two key advantages:

• Clarity: A will clearly states your intentions regarding your assets and who should receive them, leaving no room for guesswork. This clarity can extend to wishes regarding future care arrangements, ensuring funds are allocated as intended.
• Certainty: It ensures your wishes are legally enforceable and will be carried out as you intended, giving you confidence that your legacy is secure. This includes the certainty that your financial resources can be directed towards services like live-in care, should they be needed.

This clarity and certainty are the foundations of the peace of mind that many experience after making a will. As John put it, “I’ve heard it many times from people saying, ‘Thank goodness I’ve done that. I really feel… that’s the right thing.'”

Overcoming the Hesitation: Why People Delay and the Dangers of Intestacy

So, why do people delay such an important task? John suggests some common, albeit misguided, reasons:

• Superstition: “If I make a will, it means I’m going to die soon,” a complete “misnomer” as John describes it. While confronting mortality is uncomfortable, a will doesn’t hasten death; it merely prepares for an inevitable fact of life.
• Misconceptions about the state or family: Some mistakenly believe the state will “look after them” or that their family will simply “do what’s required.” This is a particularly dangerous misconception when considering the rising costs of care.

These misconceptions lead directly to the perilous situation of intestacy – dying without a valid will. When this happens, the law dictates how your estate is distributed, which, as John illustrated with powerful examples, is rarely aligned with the deceased’s true wishes and can have “catastrophic” consequences, potentially leaving loved ones without the financial means for essential support like live-in care.

Consider these real-life scenarios:

• Sheila and Jack: Sheila owns a property where she lives with her partner, Jack. She has no children, but Jack does, and she’s fond of them. She assumes her estate will eventually go to Jack and then his children. However, without a will, if Sheila dies, Jack is left technically homeless with no entitlement to the property. Her estate would go to her parents, and if a parent is in a care home, the inheritance could be “gobbled up with care fees,” leaving nothing for Jack or his children. This scenario starkly illustrates how the absence of a will can quickly deplete assets that might otherwise have supported live-in care for a surviving loved one.
• David and His Separated Wife: David, 70, with substantial assets (two properties, money in the bank, worth about £1 million), has been separated from his wife for over 20 years. He believes his children will inherit everything. Under the law of intestacy, his estranged wife would inherit the first £322,000 of his assets, plus chattels, and half of the remaining balance – potentially around £600,000, leaving his children with only £300,000. This is almost certainly not what David would have wanted, and it reduces the funds available for his children’s future, potentially including their own care needs.

John also touched upon the unsettling reality of “heir hunters” and unexpected inheritances. While sometimes a pleasant surprise, receiving an inheritance without a will can disrupt the life of someone on means-tested benefits, highlighting the need for careful planning, potentially including trusts, to ensure vulnerable beneficiaries are cared for without jeopardising their support, or providing for their future live-in care without impacting their benefit entitlements.

Ultimately, without a will, an estate could even go to the Crown if no living relatives can be found. The responsibility then falls to the next of kin to become “personal representatives” and navigate the complex process of distributing assets, which can be particularly stressful if there are immediate care needs to address.

Contested Wills and Testamentary Freedom

Even with a will, disputes can arise. John noted that will contests are becoming more prevalent. This makes it even more important that a will is drafted correctly, with clear explanations and gathered evidence regarding the testator’s circumstances, decisions, and mental capacity at the time of drafting. This evidence is crucial if a will is contested, proving the person “knew what they were doing” and had the capacity to make their decisions, including decisions about how funds should be used for their own or others’ care.

Unlike some countries, like Australia where it’s mandatory to vote, or European countries like France or Spain with strict inheritance rules, the UK operates on the principle of testamentary freedom. This means you generally have the right to leave your assets to whomever you choose. While a spouse might dispute a will that excludes them, the core principle is that you decide where your assets go, which is a powerful reason to have a will, especially if you want to ensure specific provisions for live-in care or other support for loved ones.

The Compassionate Choice: Why Every Adult Should Have a Will

John stressed that it’s “beholden on practically every adult” to have a will, especially if they have dependents or loved ones. It is, in essence, “the caring thing to do.” He’s even drafted wills for individuals with vulnerable children or adults who may be on state benefits, using special trusts to ensure their care without disrupting their existing support. This highlights the nuanced planning a professional will writer can provide for complex family situations, including arranging for funds to be held in trust specifically for live-in care.

Understanding Lasting Powers of Attorney (LPAs)

As important as a will, if not more so, are Lasting Powers of Attorney (LPAs). While a will deals with your estate after you die, an LPA empowers trusted individuals, known as attorneys, to manage your affairs if you lose mental capacity. This loss of capacity could be temporary (e.g., a coma after an accident) or permanent (e.g., due to dementia). Without an LPA, no one has the legal authority to act on your behalf, which can severely hinder the ability to arrange and pay for essential services like live-in care.

There can be confusion around the term “attorney,” as it often implies a lawyer. However, in the context of an LPA, an attorney is simply someone you appoint to act on your behalf. Anyone over 18 who isn’t bankrupt (or subject to an Individual Voluntary Arrangement) can be an attorney. John, for instance, has appointed his adult children as his attorneys.

Choosing your attorneys is a “really, really important” decision. You need to consider what powers you grant them and if there are any restrictions. Attorneys cannot simply take money for themselves; they are legally bound to act in your best interests, including making decisions about your living arrangements and care, such as engaging a live-in care provider.

LPAs came into force with the Mental Capacity Act of 2005/2007, which legally defined “mental capacity” as the ability to:

• Take in and understand information.
• Think through that information.
• Make a decision.
• Communicate that decision.
• Retain that information.

There are two distinct types of LPAs:

1. Property and Financial Affairs LPA: This gives your attorneys the authority to manage all your financial arrangements if you lose capacity. Crucially, you can also specify that your attorneys can act on your behalf even if you haven’t lost mental capacity but are physically unable to manage your finances (e.g., due to illness and inability to sign documents). This is vital for ensuring bills for live-in care, household expenses, and other financial commitments continue to be met.
2. Health and Welfare LPA: This allows your attorneys to make decisions about your medical care, where you live, what you wear, social activities, diet, and even life-sustaining treatment. However, attorneys under a Health and Welfare LPA can only act if you have lost mental capacity for that specific decision at that particular time. This type of LPA is particularly relevant for those who wish to ensure they receive live-in care in their own home, as their attorneys can advocate for these wishes with medical professionals and care providers.

The LPA Process and Choosing the Right Attorneys

After completing and signing the LPA documents with a professional will writer, the documents are sent to the Office of the Public Guardian (OPG) in Birmingham for registration. There might be a fee involved, followed by a 28-day “cooling off” period. Once registered, the document is in force, giving your attorneys the ability to help you in times of need, including making prompt decisions regarding live-in care. Banks and other organisations can verify an attorney’s authority online using specific codes, though having the physical document (or a certified copy) is still important.

Choosing your attorneys wisely is paramount. John recommends selecting individuals who are:

• Younger than you (if possible): LPAs last until you die, so choosing younger individuals ensures they are likely to be able to act for a long time.
• Trustworthy: Especially for financial matters, ensuring funds are managed responsibly to cover care costs.
• Capable: They should have the ability to handle financial transactions and understand complex medical situations, including the intricacies of arranging and maintaining live-in care.
• Responsible and Compassionate: They should act in your best interests, dealing with matters sensitively and making decisions that prioritise your wellbeing and comfort, such as choosing the right live-in care provider.
• Know you well: This helps them make decisions that align with your values and wishes, particularly concerning your preferred living and care arrangements.

John also strongly advises appointing more than one attorney, ideally two, three, or even four. This creates a safety net and provides oversight, reducing the risk of abuse of power. You can even specify that certain decisions (e.g., spending over a certain amount) require attorneys to act jointly, rather than separately. This level of detail makes professional advice invaluable, rather than relying on generic online templates, especially when planning for significant expenses like live-in care.

The Dire Consequences of Not Having an LPA

If you lose mental capacity without an LPA in place, the consequences are “dreadful.” No one has the legal authority to manage your affairs. This can lead to unpaid bills, unmanaged medical situations, uninsured property, and even repossession of assets. Crucially, it means no one can legally arrange or pay for vital services like live-in care, potentially forcing an individual into a residential care setting against their wishes, or causing significant delays in receiving necessary support.

To gain legal authority, your family would have to apply to the Court of Protection to be appointed a court deputy. This process is:

• Lengthy: It can take 6, 9, or even 12 months. During this time, critical care decisions may be delayed.
• Intrusive: It involves medical assessments and legal fees, adding to the burden on your family.
• Uncertain: The court appoints the deputy of their choice, which may not be who you or your family would have wanted.
• Ongoing oversight: The court deputy is responsible to the court for managing your affairs, which adds another layer of complexity and potential cost, and may not be as responsive to immediate care needs as an appointed attorney.

The Professional Advantage and John’s Advice

Working with a professional will writer, particularly one from the IPW, offers several advantages over DIY templates:

• Professional Training: You’re dealing with someone trained to help you correctly, ensuring your will and LPA reflect your wishes for your estate and future care.
• Understanding and Advice: They understand the “ramifications of what you are thinking about” and can provide informed advice tailored to your unique situation, including how to structure your estate to support live-in care.
• Up-to-Date Knowledge: Professionals stay current with changing laws and regulations, which can impact care funding and estate planning.
• Face-to-Face Connection: Many IPW members offer home visits, providing a more comfortable and personalised experience than a “stuffy office,” allowing for detailed discussions about sensitive topics like care preferences.

John’s top pieces of advice for anyone considering or updating a will or LPA are:

1. Don’t delay. Just do it.
2. Get professional help and advice.

He emphasised that wills and LPAs are “living documents” that reflect your intentions at a particular time and can always be changed in the future, provided you have the mental capacity to do so. People frequently update their wills due to life changes like deaths or changes in charitable intentions, and they can also adjust them to reflect evolving care needs or preferences for services like live-in care.

For those seeking resources, the IPW website (www.ipw.org.uk) offers information and allows you to find a local IPW will writer. John himself, through his business Stonehouse Legal Services (based in the Midlands), is available for direct inquiries. You can reach him via his website (stonehouselegal.co.uk), email (stonehouselegal@gmail.com), or phone (07553 78965).

As Luca concluded, if even one person is persuaded to get their will or LPA done, it will be “a hundred percent worth it,” benefiting their families and loved ones by providing clarity and peace of mind, and crucially, ensuring that wishes regarding future care, including the choice of live-in care, can be properly honoured. Don’t delay; take the steps to protect your future and provide clarity and peace of mind for those you care about.