Firstly it should be clear that an attorney is the person (or people) who are appointed under an LPA as the selected representative of the donor. The law then dictates that certain duties are required by the attorney and must be carried out to the letter of the law.

The attorney’s role carries a large amount of control over money and health issues so the first thought is that the power should only be given to someone who will cautiously and sensibly carry out the tasks required.
They will need to apply standards of care and skill (this is called a ‘duty of care’) when making decisions. This will also remind the donor of choosing the person who is capable.

The attorney must carry out the donor’s requests. They must carry of the instructions as directed and not just decide to do whatever they feel is in the best interests of the donor if those go against the original directions.

The attorney must do the work themselves unless they’ve been given permission by the donor to delegate any or all decisions. You don’t just get the job and then hand it over to someone else without just reason.

They must act in good faith at all times. They can’t act in a manner that suits them if it goes against the ways the donor would have wanted. They must also respect confidentiality. It’s not allowed for an attorney to disclose private information about the donor to people who don’t need to know.
It’s essential that attorneys comply with any requests from the Court of Protection. They’re the official body and shouldn’t be ignored.

An attorney can’t give up their role unless they let the donor know, when they could be replaced without too much difficulty. They should also tell the Court if they’ve started work as an attorney and there should be a suitable reserve able to take their place, ready.

They need to keep good accounts and most importantly, keep their own money separate from that of their own accounts.

If you’re at all unsure about the attorney’s work, then consult a professional who can guide you.

If you choose to use an ordinary power of attorney this is because you’re going to give the power to manage your financial affairs to someone else when is difficult for you to look after them yourself. This may be because of a physical disability or long-term illness. You will want to appoint someone you trust, usually a relative or perhaps a friend, to give the power to. It should be made clear that nobody can simply take the power from you, particularly when you have full capacity when your ability to think and make decisions is not diminished.

You have to give the power away as your own choice. You get to decide who you’re going to give the power to having of course, made sure the person receiving the power, wishes to act for you. You can get end this decision by canceling the document at any time. The power of attorney will end if you lose the capacity to make your own decisions.

A Lasting Power of Attorney, which is called a Continuing and Welfare Power of Attorney in Scotland is similar to a power of attorney apart from the fact that it can continue after you have lost your capacity to manage your own affairs, be that on a temporary basis or permanent, which is often because of illness or disability or you have been in and accident.

These powers were previously called enduring powers of attorney and if you made one before 01/10/2007 you can still use it however, you can’t make a new enduring power of attorney after that date, you have to make a lasting power of attorney.

You must fully understand any of the implications of making a new power of attorney. A correct person will need to provide a certificate to say that you are aware of the implications and that no one is pressurizing you into making your lasting power of attorney. They must be over 18 years of age and not bankrupt. You can appoint more than one attorney at the same time.

The lasting power of attorney has to be registered at the office of the Public Guardian before you start using your document. It should be noted your lasting power of attorney can be used while you have full capacity if you so choose and then can be used after (and if) you lose capacity as well. You should note that the office of the Public Guardian charge fees for registering Lasting Powers of Attorney.

You get to choose between two different types of lasting power of attorney. The property and financial affairs version deals with not surprisingly, most of the obvious problems aperson deals with on a day-to-day basis while the health and welfare option adds the discussion about who could turn your life-support machine off at your request, when you can’t actually make the request at the required moment.

There are a range of other financial matters you’ll need to consider when planning for your retirement years. You may decide to look at equity release schemes where you can take some of the value of your home and use it now without having to sell your home. You also need to consider how you’re going to fund any long-term care you may or may not need. You can continue to plan your estate in deciding what gifts you can give to family and friends when you update your will.

It may be that due to illness or disability, perhaps an accident, that you might find it difficult to manage your money and your affairs so you must think ahead and take sensible steps to prepare for your last years.

Your first step is to talk to a qualified professional person who can guide you and give you advice on the necessary steps you can take. This will enable you to get your affairs in order and let your family and friends as well as professionals know what your plans are. This will include updating your will and choosing the person or people who can act for you legally, when they take on the power of attorney over your financial affairs, if you believe this is necessary.

Essentially this means that you will be asking others to help you out and perhaps take over completely which will reduce the burden on your family and friends or perhaps carers in a care home, who might find it too complicated to make obligated decisions on your behalf or not even have the legal possibility to be able to do so.

If it’s too late to take these steps as the person is already incapacitated, (the legal phrase for being unable to handle their own financial affairs,) then relatives need to take advice immediately. This may lead to contacting the Court of Protection who can make the compulsory preparations for looking after a person’s financial affairs.

Thinking in advance you’ll need to let your professionals know whether you’ve made a will and if it’s up-to-date. You need to think about who you want to handle your affairs and you may be guided by the assets or income you have to make those decisions. You might want to think about special wishes about how you want your property, assets or liabilities to be handled. You may need to make necessary decisions based upon any exacting medical conditions you have at the time.

Applying in person means you end up having to deal with people at the registry and you need to complete tax forms and the necessary application form not forgetting to pay the necessary fee as well. The good news is that the staff at the registry will help you fill in forms.

As a personal representative you be made responsible for ensuring that the estates is administered the right way. If there was a will you make sure the wishes of the deceased are carried out exactly as they were named and listed in the will. Where there isn’t a will you follow the rules of intestacy which is set out in the Administration of Estates act 1925 and was duly updated recently.

You’ll also be responsible for ensuring the you calculate inheritance tax due from the person’s estate. If there is money to be paid it’s up to you to make sure that it’s paid. Finding out whether tax needs to be paid can depend upon the value of the property and the belongings of the person who died, the value of any gifts they gave away in the years before they died, in particular who they gave these gifts to. You need to find out if they had any money in the trust, received money from the trust and who the beneficiaries would be under the will or in the rules of intestacy. HM Revenue and Customs will prove most useful when you come to sort out inheritance tax.

It takes a long time to deal with the financial situation of someone who has died. It’s quite common for it to take up to a year and even longer if things are not as obviously straightforward as you expect. A number of banks, building societies and insurance companies will be involved in the process each with their own rules.

Before completely dealing with the estate you’ll need to see if there are any claims that are on it, in other words any debts against it. Individuals get six months from the date of probate, not from the date of death, to make a claim against the estate.

The number of other things will greatly affect the time taken to administer the estate and this may help you decide whether you pass the process over to a professional. It depends whether the financial situation of the person was physically in order when they died. They may of been a complete mess. It also depends on the content of the estate and exactly where the contents are. Also the time factors to consider are affected by whether the estate was a business or farm, the contents of the will of how the rules of intestacy are affected, whether there’s likely to be any legal disputes and whether inheritance tax needs to be paid and if it can be paid.

You’ll need to deal with HM Revenue and Customs to ensure that files are completely closed in everything relating to its income tax, benefits and pensions having been sorted out.

One final problem that delays matters is if there any family arguments between beneficiaries and people who are not listed to receive. You need to sort out all the problems before the financial affairs of the person who deceased, can be finally settled.

If a professional is to takeover work for you, you’ll need to know exactly what the cost is before you start the work. This is usually set out as a percentage of the estate but there can also be charges per hour which is a bit more open-ended and you’ll not know perhaps, what you’ll finally going to need to pay. It’s the estate that pays the bill, but of course the more that goes to the bill the less that goes to the estate.

Take professional advice and ask for recommendations from friends.

When a person has died either they will have left a valid will or now will at all. The difference is extremely important as a will dictates how their estate will be passed on. If they don’t have a will law dictates what happens next.

In a will you will almost certainly have named one or more people to administer the estate for you. They’re now called the executors of your will. It is as the executor you’ll need to apply for a grant of probate. That’s an official document which is needed to administer the estate. The probate registry, a part of the court system, will issue the document.

You are said to have died intestate if you don’t have a will and that includes if you had an invalid will. The process of sorting out your estate is much more difficult when there isn’t a will. You have to make an application for a grant of letters of administration which is the official document issued by a court that gives permission for the administrators to administer your estate.

The letters of administration are granted to a person who’s been known as the administrator. This is the person given the legal right to deal with the financial affairs of the deceased and the rules are set out in a certain order of priority. The administrator is usually one of the persons closest relatives, if they have any, or the closest friends. It could be a more than one person will have a right to do this job.

Executors or administrators would also be known as the personal representative of the deceased. If more than one of you is doing this work you get to work together and have to decide matters between you. If you can’t agree you’ll not only delay the whole process you can add considerably to the expense of the work.

Although it’s called a grant of representation it’s also called a grant of probate if the deceased left the will, or a grant of letters of administration when they didn’t leave a will. However people often just call it probate whether there is or isn’t a will.

There are rules which dictate when a grant of representation is needed. It isn’t always needed if a person has died and left less than £5000 in total or if they own everything jointly with their spouse or partner. Nevertheless some banks and insurance companies require probate before you have access to even very small amounts of money.

A grant of representation will almost certainly be required if the deceased is left with more than £5000, land or a house, stocks and shares (often called equities) or some kind of insurance policies.

However, Brian McMillan, Director General of the Society of Will Writers (SWW), added that the programme’s focus on problems experienced by a small handful of people who had asked will writers to handle their probate masked the real issues people should be addressing.

“As with most documentaries of this type, the programme sought to suggest there is a major problem within the will writing industry by show-casing half a dozen cases – actually concerning probate administration rather than will writing – only one of which was proven to be a fraudulent case.

“The reality is that the SWW alone has 2000 members who write some 200,000 wills a year with hardly a problem. Our insurers have handled just 11 cases in the past 16 years.

“We work in an unregulated market not through choice but because successive governments have deemed it unnecessary to bring in regulation. However, the SWW would support regulation. The SWW has been on the Scottish consultation panel since 2006 and it supports the Scottish Government in its proposed regulatory plans.

“The SWW is also supporting and working with the Legal Services Board in England to regulate or at least licence will writers and is pressing for tighter regulation of probate and client funds.

“The simple truth though is that no amount of legislation will eliminate fraudulent behaviour in any industry. One of the will writers featured in the programme last night was, as the Panorama reported admitted, a struck-off solicitor. The legal industry is clearly not immune then to the type of issue highlighted by the programme but which seemed to suggest lay at the door of will writers.

“What the programme should have highlighted was that people need to read and understand the terms and conditions of the literature they are signing and if they don’t understand, don’t sign until they are fully satisfied. They should ask the person dealing with them about their experience, qualifications, insurance cover and membership of a professional organisation.

“In any industry there will always be the occasional bad apple but this shouldn’t cloud the key issue which, as the programme itself highlighted at the opening, is that a will is a vitally important document which is best handled by a professional whose skills are dedicated to will writing.”

Issued on behalf of the Society of Will Writers by PJR Communications Ltd. For further information, please contact Peter Richardson on 01206 843225.

The Society of Will Writers (SWW) is a non-profit making self regulatory organisation which seeks to Protect the Public and serve the interests of those men and women who are active professionals in our field.

A SWW member is covered by Professional Indemnity Insurance, underwritten by the UK’s leading insurance company Hiscox, and is obliged to provide customers with proof of this if requested. The member is bound by the SWW’s code of conduct and disciplinary and complaints procedures, copies of which are available from the society upon request.

The SWW member is obliged to provide a quotation - in writing if requested - of the price to be paid for the preparation of a will or wills, including any extra costs that be incurred, before proceeding to prepare a will or wills. If more than one will is to be prepared, the member is obliged to provide a quotation of the prices of both wills either separately or as a set of wills.

All SWW members go through a stringent vetting procedure and continuing training to ensure that they are suitable persons to properly write a will.

They didn’t give the industry much of a ‘battering’ though. They mostly focused on probate and paying for it now while you’re still alive rather than after your death.

This ‘up-front money’ has worried some people and as long as there’s money about, people can and do get worried about where it might end up. Previously we’ve seen problems from many industries:

• Financial services rip offs
• Dodgy solicitors
• Chicken farms where they don’t treat the chickens correctly. Even sometimes injecting the breasts with water to weigh more
• Plastic surgeons
• Weird diets
• House builders
• Plumbers
• M.P.’s expenses
• The great banking rip off

There is hardly any part of life that is left unscathed throughout its entirety.

The good news to take from the programme is that LSUK have never advocated pre paying probate/executry fees and then adding on another 1%, like some companies mentioned. We were not named and shamed on the programme like some companies which may be down to the quality of training and high ethical values we try to install in all of our consultants and let’s not forget we were the first company in the field of will writing to gain Investor in People status.

We approved of the programme as it will help weed out the weak and inform the client that LSUK completely endorse regulation and have done for many years. If the client is not delighted with the service you provide they can have a full refund as per our terms of business.

Of course what the Panorama report failed to highlight was the many thousands of very satisfied clients we maintain and continue to reward with our high level of professional services.

The sisters, Ethel Wilson and Mabel Cook had their hair set each week by Jill Fraser for more than 40 years. The widowed sisters had a written wills which left their assets to relatives and friends, but when the first sister died in 1995, the second sister changed her will two months before she died in 2006, some eleven years later.

What doesn’t appear to be known at present is whether they had mutual wills or mirror wills.

Mutual wills, more often known as two mirror wills that has a clause added which says that the other will can’t be changed after one of the two dies.

Standard mirror wills don’t include that clause and while they ‘mirror’ each other’s details and clauses, they can be changed after one person dies, although lots of people don’t understand this. They leave a will and if they die first they expect the remaining partner to maintain the original will of the second person. However, there’s nothing in law that says that the second person has to keep the second will and they can, in fact, update it as they see fit.

The challenge here is that if they were mutual wills, the second will becomes invalid, while if they were just mirror wills, there was an implied agreement that neither would change their wills.

Under the updated will, the hairdresser gets £390,000 and the 15 relatives and friends get nothing.

The sisters moved in together when their husband’s died in the 1970’s. The hairdresser became good friends with both sisters (having known one before they moved in together) that she even stopped charging the ladies for their hairdressing.

One problem that may arise in this court case is whether there was undue pressure from an outside party for the second sister to update her will two months before she died. She may not have remembered that her previous will had clauses (or not) to ensure the wills couldn’t be updated. After all, she was 92 when she finally passed on.

Unfortunately, you can see all points of view, but the judge will draw on the law to ascertain which route to take.

The person she worked for died recently aged just 66. In her will the lady left her maid a total of around 6 million Singapore dollars, for the maid’s hard work over the previous 20 years. That’s around US$ 4.4 at today’s exchange rates.

The maid, aged 47, will not need for money, probably for the rest of her life, but reports say she’s not intending to change her life as she doesn’t care too much for money. The reports don’t say if she’s keeping her work going.

Nevertheless, the maid is changing her name to Christina so she isn’t subject to kidnapping and her money being used as a ransom for her release.

The maid claimed she wasn’t surprised by the amount of money being left to her.

This, of course, isn’t the first case of a wealthy person rewarding their staff. However, this isn’t a suggested course of action for all staff. You shouldn’t influence a person’s will writing intentions and under all UK laws, your inheritance may be taken away from you if your undue influence is deemed inappropriate by a court judge, providing someone complains and contests the will at some stage.

Nevertheless, if a person wishes to reward their staff with a legacy in their will, of course, they’re free to do so.

No doubt there will be some family members who will be disappointed that a ‘maid’ gets such a large sum to inherit while family members may get nothing whatsoever, but you could argue that the maid ‘earned’ the money.

During the service, his 29 year old daughter, Lauren Higgins, read a poem she’d written, as a tribute to her father.

It read:

You never said I’m leaving, you never said goodbye.
You were gone before I knew it, and only God knew why.
There are no words to tell you, just what I feel inside.
The shock the hurt, the anger, might gradually subside.
A million times I’ll need you, a million times I’ll cry.
If love alone could have saved you, you never would have died.

In life I loved you dearly, in death I love you still.
In my heart you hold a place, that no one could ever fill.
It broke my heart to lose you, but you did not go alone.
For part of me went with you, the day God took you home.
Things will never be the same, and although I hurt so bad,
I will smile whenever I hear your name, and be proud you were my dad.”

A lovely poem read with dignity. Northern Ireland’s two most famous sons now rest back home; Alex Higgins and George Best.