This is the least dramatic page in the app and one of the most consequential, because the two documents it describes are the difference between a family that can act and a family that cannot.
It is also the page with the tightest deadline, and the deadline is invisible: a power of attorney can only be made while the person still has the capacity to make it. After that, the option has gone permanently.
This is not legal advice
Why the timing is the whole thing
A power of attorney is a document by which somebody who has capacity appoints somebody to act for them if they later do not.
It must be made while they still have capacity to make it. That is the entire mechanism, and it means:
- It cannot be done afterwards. Once capacity is lost, the family cannot make one, however obviously it is needed.
- It is not only for old age. A stroke, an accident, a head injury or a serious illness can remove capacity at any age and without warning. See head injury and concussion.
- It is for the person making it, not for their family. It is an act of control over what happens to you, not a surrender of it.
The commonest sentence in this area is "we were going to sort that out". Every solicitor and every social worker hears it, and by the time it is said the option has usually gone.
Do it early, while it feels unnecessary. That is the point at which it can be done.
Power of attorney across the UK
Two separate powers in England and Wales, and both are worth having. The financial one can be used with the donor's permission while they still have capacity, which is useful during a hospital stay; the health and welfare one can only be used once capacity is lost.
Registration takes time. In England and Wales it has commonly taken a number of weeks, and a power of attorney is not usable until it is registered. Making it and registering it are separate steps and people stop after the first.
Older documents. Enduring powers of attorney made in England and Wales before October 2007 remain valid for property and financial affairs, but no new ones can be made.
You can do it yourself. The forms are available and the process is designed to be usable without a solicitor. Use one anyway if anything is complicated, if there is any family disagreement, or if anybody might later question whether the person understood what they were signing.
Choosing an attorney
The decision that matters more than the paperwork.
- Somebody you trust completely with money, because that is what you are handing over.
- Somebody who will actually do it. It is administrative work, and it can go on for years.
- Somebody likely to outlive you and be well enough to act. A spouse of the same age is a common and fragile choice on its own.
- More than one, if you can. Appoint replacements, so a single death or falling-out does not leave you with nothing.
- Decide jointly or severally. Acting "jointly" means every decision needs all of them, which is safe and can be paralysing. "Jointly and severally" means any one can act alone, which is practical and requires more trust. Most people choose the second.
- Talk to them first. Being appointed without being asked is a poor start, and they may say no, which is better known now.
- Write down your wishes alongside the document. An attorney acting in your best interests is helped enormously by knowing what you would have wanted.
If there is no power of attorney
The alternative, and it is worth knowing so the effort of doing it now is in proportion.
Somebody must apply to a court to be appointed: a deputy in England and Wales, a guardian in Scotland, a controller in Northern Ireland.
- It takes months, frequently many.
- It costs a great deal more than a power of attorney would have.
- It involves ongoing supervision, reporting and fees.
- The court decides who is appointed, not the person who lost capacity.
- Health and welfare deputyship is rarely granted in England and Wales, so decisions about care and treatment fall to be made by others in the person's best interests.
Meanwhile, bills go unpaid, care cannot be arranged, and a house cannot be sold. Banks will not discuss an account with a family member without authority, however obvious the need. Joint accounts continue to work, which is one reason they are common in couples, and they are not a substitute.
Wills
Without a will, the intestacy rules decide who inherits, and they differ across the three UK jurisdictions. They frequently do not match what people assume.
Things that surprise people:
- Unmarried partners inherit nothing under intestacy, however long the relationship and however many children. This is the single most damaging assumption in this area.
- Step-children are not automatically included.
- In England and Wales, marriage generally revokes an existing will, unless it was made in contemplation of that marriage. In Scotland it does not.
- Divorce affects gifts to a former spouse, and does not tidy up everything else.
- In Scotland, legal rights mean a spouse and children have claims on the estate that cannot simply be written out, which is a substantial difference from England and Wales.
The formalities are not the same in the three jurisdictions, and a will that would be perfectly valid in one can be defective in another.
| England and Wales | Scotland | Northern Ireland | |
|---|---|---|---|
| Witnesses | Two, present at the same time | One | Two, present at the same time |
| Minimum age | 18 | 12 | 18 |
In all three the will must be in writing and signed by the person making it. A witness, or their spouse, cannot benefit from the will, and a gift to them fails while the will stands.
Scotland's age of 12 is not a typo. Testamentary capacity there starts at 12, under the Age of Legal Capacity (Scotland) Act 1991, which is six years earlier than the rest of the UK and surprises almost everybody who hears it.
Homemade and online wills are valid if properly executed and are also where most disputed and failed wills come from. The saving is small and the consequences of a defect are not.
What a will should cover
- Who inherits what, and what happens if a beneficiary dies first.
- Executors, who administer the estate. Appoint more than one, or a replacement.
- Guardians for children under 18, which is the single most important clause for parents and the one most often omitted.
- Any specific gifts, clearly described.
- Funeral wishes, though these are not binding and should also be told to the family.
- Digital accounts and assets, increasingly worth mentioning.
- A letter of wishes alongside, which is not binding and can explain reasoning and cover the personal things a will should not.
Tell the executors they are executors, and tell them where the will is.
Where to keep them
- Keep the original safe and findable. A will nobody can find is a will that may as well not exist, and the estate is then dealt with as an intestacy.
- Note where it is on the household index sheet. See what documents to hold.
- Solicitors store wills, often free, and firms merge and close, so record the firm and any reference.
- The probate service accepts wills for storage in England and Wales.
- Do not staple, unstaple, pin or attach anything to an original will. Marks and removed staples raise questions about missing pages.
- Keep copies with the household file and in the digital archive, clearly marked as copies.
- Registered powers of attorney: keep the original safe, and note that organisations will usually want to see it or a certified copy.
Reviewing
Every five years, and after any of these:
- Marriage, civil partnership, separation or divorce.
- A birth, a death, or a change in the family.
- A significant change in assets or property.
- Moving between the three UK jurisdictions, which genuinely matters.
- An executor, attorney or guardian becoming unable or unwilling.
- Moving abroad, or acquiring property abroad.
Put it in the annual document review, and act on it when something has changed.