When dealing with the ‘end-of-life’ affairs of a close relative or loved one, several stages of care may be involved. During this process, which can span many years as a person’s health declines, the cognitive and mental capabilities of the person may also decline, to a point where they are unable to make their own financial or welfare decisions.
At that point, somebody else needs to take charge. This may have been something already discussed and agreed with the affected person. Normally, the one who assumes control of the sick person’s affairs is a close family relative or trusted friend. To take charge legally, there needs to be a ‘Lasting Power of Attorney’ (LPA) document in place. This legally gives delegated authority to the nominated person.
Confused over the terms?
Some confusion can arise, because upon the death of the person in care, one may wrongly assume that the LPA affords them the authority to handle the deceased ongoing affairs, such as how the will and estate are handled.
While it is certainly possible for the person who is entrusted with lasting power of attorney to also be the executor of the will, they require a different legal document to administer the deceased’ estate. This is called the Grant of Probate.
Lasting Power of Attorney: A legal document that empowers the holder to act on behalf of another person, while they are still alive, but has become incapable, either through cognitive or physical impairment, to make independent decisions of their own. This includes having the authority to make decisions concerning financial matters and maters of ongoing care and health.
Grant of Probate: Probate is the process of administering the estate of a deceased individual. This process is handled by the will’s executor and typically involves ensuring the wishes expressed in the will are executed. However, to do so may mean handling significant sums of cash or other assets. Naturally other institutions may be involved – the banks, tax authorities and estate agents – and they need proof. The Grant of Probate provides this.
So, in short, the LPA doesn’t provide the necessary level of authority to permit somebody who is both entrusted with the LPA and as an executor of the same person’s will, to administer the deceased estate and dispose of the assets, a separate Grant of probate needs to be applied for.
What happens if somebody dies without a will?
When somebody dies without a will is a situation called ‘Dying Intestate’. In this instance, a family member has to apply for ‘a grant of letters of administration’. The is similar to a Grant of Probate and is issued by the courts. The person, who becomes known as the administrator, then has the powers to manage the disposal of the deceased estate.