Do I need to change my Enduring Powers of Attorney to Lasting Powers of Attorney?

Do I need to change my Enduring Powers of Attorney to Lasting Powers of Attorney?

We have been helping our clients for over 21 years, which includes a time when Enduring Powers of Attorney (EPAs) were the only tool we had to assist should we lose our mental capacity. We wrote many EPAs pre-2007, which is when the law changed, but the vast majority of our clients have now chosen to update their EPAs to LPAs (Lasting Powers of Attorney). However, we have clients out there who still have Enduring Powers of Attorney and there are many people (not our clients) who are under the illusion that their EPAs are sufficient. So, for those people who still have EPAs, here are a few pointers as to why you might wish to consider updating them now:

    • Your EPA cannot be registered on the Government register until you have lost your mental capacity. But, your EPA cannot be used by your attorneys until it has been registered. It is currently taking six months to register any power of attorney so this means there will be a 6-month delay in your attorneys being able to assist you should you lose your capacity.  LPAs, on the other hand, can be registered straightaway so they are ready to be used as and when required.
    • In addition, there is an extra, compulsory, safeguarding procedure that forms part of the EPA registration process. As much time may have passed between when you set up your EPAs and when you need to use them, it is necessary that your attorneys notify a prescriptive, and potentially lengthy, list of relatives before they may apply to register your EPAs. This can involve writing to remoter relatives with whom you are no longer in touch. Either way, this is a time-consuming process but one that does not have to be followed when you register LPAs. In any event, were you to opt to draw up new LPAs, we would register these for you at the time as part of the service we offer to our clients.
    • Your EPA is restricted to your financial affairs only. However, you are also able to set up an LPA for Health & Welfare matters which enables your chosen attorneys to make critical decisions for you such as your care package, whether you get cared for at home, whether you need to go into care and, if so, which care home. It also enables them to speak with the medics and the social workers concerning matters such as medication but, more importantly, life-sustaining treatment decisions. Many people assume that their spouse and close family will automatically have the authority to manage these areas of their lives but they don’t. Of course, they will be involved but the ultimate decisions can only be taken by third parties such as medics and social services if you don’t have a Health and Welfare LPA in place.
    • You may only have named your spouse as your attorney on your EPA and this may no longer be appropriate. You may wish to nominate others who can work with or independently from a spouse or partner.
    • You may only have listed one of your children as an attorney as the others were too young to act but now you may wish to include more family members or friends to act on your behalf.  This is of course possible with an LPA.

This is certainly not an exhaustive list of reasons to take out LPAs so if you would like to discuss this topic with us further then please contact us on 0191 406 0747 or

Do I need Business Lasting Powers of Attorney?

Do I need Business Lasting Powers of Attorney?

Before I answer that, I feel we should ask a different question and that is “do I need a Lasting Power of Attorney at all?”

That one is simple to answer and that is “YES OF COURSE!”.  

Mentally incapacity is so often just thought of as dementia and Alzheimer’s disease, but of course it can be relevant to any age through strokes, car accidents, sporting accidents, household accidents, operations that go wrong – to name a few.

Everyone who has assets needs a Property and Finance Lasting Power of Attorney (LPA).  If you were to lose your mental capacity then any asset in your sole name is now locked, as you are the only person who is allowed access to it.  Even joint assets could be frozen as when the bank or third party finds out you are now vulnerable, they have a duty to protect that asset and hence lock it from everyone, even the other joint account holders.  

So that will include your business bank account, even though you may have other signatories.  Hence, how will your staff be paid, or your services or suppliers?  How long would your business last?

So, you have established that you require a Property and Finance LPA which can be used for the business, but do you need a specific business LPA?  This depends on who you wish to run your business on your behalf.  If the attorneys you have named on your personal Property and Finance LPA are the same people that you want to manage your business, then the one document can facilitate this.

However, if you wish to name someone knowledgeable within the business on the LPA but do not wish them to have access to your personal affairs, or you may have a personal attorney who you do not wish to be involved in the business, then you will require two documents; a business LPA, restricted just to the business and a personal LPA restricted to all assets except the business assets.  You may have attorneys that are named on both documents.

As always, this is a specialised area and so appropriate professional advice is highly recommended.  If you require a conversation about your own circumstances, then please call us at Hamilton Legacy on 0191 406 0747, or
email us at, we would be delighted to talk this through with you.

Contentious Wills and Capacity

Contentious Wills and Capacity

Sometimes I come across clients who want to make a bold decision and remove a key member of their family from their Will.  This is not done lightly, flippantly or without due consideration. In fact, it is usually quite upsetting and raw for them.  If the person giving me this instruction (the testator) is elderly, this immediately rings alarm bells for me.  It could be an open door for a challenge by the aggrieved, removed beneficiary on the grounds of the testator not having mental capacity and hence not knowing what they were doing when they wrote that person out of their Will.

Throughout the testator’s consultation with me, in my professional capacity, I will be assessing whether they have the mental capacity to make a Will; this is called testamentary capacity.  This is framed by a case called Banks vs Goodfellow which broadly asks the following:

  • Does the testator understand they are making a Will?
  • Do they understand the extent of the estate they are bequeathing?
  • Do they understand who may have a claim on their estate (those who would normally be assumed to be the beneficiaries)?
  • Are they suffering from delusions?

Although we now have the Mental Capacity Act 2005, Banks vs Goodfellow is still used, despite dating back to 1870.

I will be making file notes throughout our meeting to show my views on their capacity. However, if a Will is clearly going to be contentious, I would also recommend an independent Mental Capacity Assessment.  This is not necessarily because I doubt someone’s mental capacity but because it nips in the bud any challenge on the grounds of capacity.  If an independent medical professional has made a report on that person’s ability to make a Will, and it is favourable to them, then a challenge through the courts becomes unlikely.

Approaching a client to suggest they have a mental capacity assessment can be difficult.  Many feel this is a slight on their mental capacity but it is important for them to understand that it is quite the reverse.  It is to prove that they DO indeed have capacity so that the Will isn’t challenged on mental capacity grounds.

Don’t forget contentious Wills can take many forms and are not just about excluding a person from a Will.  It could be where the values in the distribution are uneven. A less-obviously contentious Will could be where an uneven distribution is understood and agreed by all concerned, maybe because one adult child has already received an advance of money during the testator’s lifetime. However, the Will actually shows an even distribution e.g. between all the children.  This is hard to spot as it is the ‘normal distribution’ one would expect.

Of course, there are also other ways to challenge a Will such as the Inheritance (Provision for Family and Dependants) Act 1975 which we have covered in other blogs.

So, if you have a family member who wishes to leave a lower than expected distribution or to exclude a family member who is expecting to inherit, and they are ‘elderly’ then please warn them that a professional medical mental capacity assessment is the best way forward to achieve what they wish to achieve.

Are you just about to get Married OR Separated OR Divorced?

Are you just about to get Married OR Separated OR Divorced?

If so, then you’d better know how each affects your Will.


Marriage is one of the few events that REVOKES a Will.  Not many realise this in the excitement of the nuptials. So, if you had a Will before your marriage, it is now null and void.  If you don’t make a new Will after your marriage, you will now die ‘intestate’.  You can make a Will ‘in contemplation of your marriage’ but there must be genuine intent and your partner must be known by you as your ‘intended’, rather than there being just an open-ended wish or hope!  This would mean the appropriate wording being included within your Will when it is written.

Getting married should be a trigger to review your Will or to write your first Will anyway as your spouse-to-be will have different rights and your obligations to them will differ from being those of just ‘a partner’.


Separation is never an easy time and it may mean that you are potentially on the road to divorce.  But, as far as your Will is concerned, you are still married and whatever your Will says will still happen if you die before you are divorced.  Your spouse still has the same rights. If you haven’t got a Will and you die when you are separated from your spouse then you die ‘intestate’ and the Laws of Intestacy would give your spouse the same from your estate as if you weren’t separated.  The end result could be that your spouse ends up with all your estate.  Most divorce lawyers will recommend that you rewrite your Will as soon as possible to stop both the Law of Intestacy or your current Will resulting in your spouse inheriting your estate, if you die before your divorce.


Once divorced, the general rule is that it is as though your ex-spouse has predeceased you.  So, if you still don’t rewrite your Will once you are divorced, your old Will will still be valid (divorce DOESN’T revoke a Will) but your ex-spouse will be viewed as though they have already died.  So, if your ex-spouse is an executor of your Will, they no longer will be now that you are divorced and your reserve executor will act instead.  If your ex-spouse stands to inherit from your Will, at your divorce the gift will fall to whoever would have received it if your spouse had died before you.  Any powers given to your ex-spouse in the Will will no longer stand as it will be deemed that they have predeceased you.

Of course, if you don’t have a Will, an ex-spouse does not inherit at all according to the Laws of Intestacy.

What many do not realise is that being divorced only means that the marriage is dissolved.  It does not stop any financial agreements or claims, nor does it affect the rights of birth parents.  Do-it-yourself divorces are becoming quite common and where the divorce is relatively amicable, many choose this option as it is significantly cheaper than involving divorce lawyers.  However, what many do not realise is that by not using a professional, there will be no full and final financial settlement in place and, because of that, your ex-spouse has a legitimate claim on your estate at your death.

Joint Assets

It is worth remembering that any assets that are held jointly, including both property and bank accounts, will automatically pass to the remaining joint owner at death.  It is irrelevant whether you and the other joint owner are married, separated or divorced.  This is because the asset passes according to the Law of Survivorship which surpasses the Law of Intestacy and is not affected or controlled by your Will.

As ever, it is always worth getting legal advice if you are considering either marriage, separation or divorce as it will affect your estate.


Why some choose not to write a Will

Why some choose not to write a Will

So many people find it hard to get around to writing a Will (only 45% of adults have a Will). That inertia may be for any or all of the following reasons or you may have some reasons of your own:

  • You think it will be too expensive
  • You haven’t the time
  • You don’t want to take time off work to do it
  • You can’t decide or agree together on what happens to your estate or children
  • You don’t want to think about it as it is too difficult or morbid
  • You think “it” will never happen to you at your age and you can do a Will later
  • You think you will be “tempting fate” if you make a Will
  • You don’t know who to choose to write the Will as you aren’t sure you can trust anyone
  • You think the family will “get everything anyway”
  • You think you haven’t got anything to leave so you don’t need a Will.

So, if you are to stand a chance of getting around to “it”, here are some pointers to help you make “it” happen:

  • Choose an environment that makes discussing such personal and delicate issues as easy and comfortable as possible. Most people prefer to be at home as it is their ‘space’ and they have all their documentation to hand. However, some people prefer the formality of an office. Many professionals only offered online appointments during the pandemic, so if you are not familiar with this method, you may need to involve a technology-savvy friend or family member to help. Choose a time that suits you which may be in the evening if you work during the day.
  • Choose a provider that doesn’t charge for their appointments by the hour. To take proper and thorough Will instructions takes time and sensitivity. You don’t need to be worrying about how much it is costing you. The provider should furnish you with a quote once what you want and need has been established. It should then be up to you whether or not you proceed. . The first appointment should always be used as a fact-gathering exercise for you and your circumstances.
  • Your advice should be bespoke to your circumstances because one size doesn’t fit all. Therefore, your provider, Will-writer or solicitor should know what they are talking about. Just because the company has a glossy brochure doesn’t make it an expert. Just because they are a solicitor doesn’t mean they write many Wills. Think of your GP – they know about many aspects of medicine but they aren’t like a consultant who is an expert in their field. Whoever you choose, make sure they hold the appropriate qualifications.
  • You should like and trust your provider as you will be talking about really difficult issues and personal information. Your provider should be empathetic and patient. They should be experienced in helping you make decisions on difficult topics, often topics that provoke heated discussion between you and your partner or topics on which you don’t agree or can’t decide. Such situations should be very normal for the provider as it will be a regular occurrence for them; after all, families are families and people are people!
  • It is very rare that people DON’T need a Will. “Having nothing” is not usually true and you are just storing up potential problems for your family.
  • Not having a Will at your death means your estate will fall according to the Law of Intestacy. This is a very blunt instrument and often leads to issues in our modern world. It is often quoted to me that “my parents didn’t have a Will and everything was fine”. That was then but now people lead more complex lives than ever before. Less people get married or marry several times, many people have children from several marriages or relationships and people definitely own more assets than they used to.
  • Even if the Law of Intestacy endeavours to make sure the beneficiaries are who you would choose them to be (although this will not be the case in every instance), it may mean that the person in charge of your estate and your body isn’t the person you would choose it to be. This can be very distressing and contentious for those who you would normally have chosen.
  • And finally… regarding superstition. Putting a Will in place has as much effect on whether you get run over by a bus as not having a Will!! But at least it is less problematic for those you leave behind!!

So, with all this considered, do the right thing, give yourself and your family the peace of mind and consideration they deserve and GET ON WITH IT!!!

Protecting your Will and other vital documents

Protecting your Will and other vital documents

As important as writing your Will is, it is equally important to keep it safe and in a location that is easily found when the time comes for it to be needed. As such, we are adamant that our clients must be sure their documents are stored in a secure safe to protect against fire, water, theft, loss and tampering. If the Will is lost or damaged at the time of death, your thoughtful estate planning will be disregarded, even if your chosen executors knew your wishes.

Family Wills provides a will storage service to ensure that your executors are able to action your wishes. We will also store your original Lasting Power of Attorney (LPA) documents as part of this service. We have decided to provide this service as a direct result of one of our client’s experiences.

Our client was offered Will storage but he was happy he had a “safe place for his documents”.  He even took the precaution of giving his executors an unsigned copy of his Will and Family Wills’ contact details.  When they called us for the signed Will, we had to let them know that our client had chosen to keep the original document himself and that it should be among his possessions – it wasn’t; they found everything but the Will. Ultimately the Will was ruled to be presumed revoked by destruction.

This meant that our client had now died intestate and through that law, in his case, this meant that his parents now inherited his estate.  It therefore fell to our client’s parents either to distribute the estate according to his wishes through a Deed of Variation, both timely and expensive, or to allow all the assets to default to them. In the end, the parents got their letters of administration and all his assets. The people our client wanted to benefit got nothing.

Nobody will ever know what happened to the Will. Maybe our client intended to revoke his Will. What we do know is that if we had held the Will in storage for him then his wishes would have been carried out.

If you choose to forego a specialty storage facility for your Will, be sure to store your documents as advised and be sure to let your executors know where to find your Will and how to access it.