Differences between a Grant of Probate and a Lasting Power of Attorney need to be understood.
The crucial difference is that:
– A Grant of Probate is employed when an individual has died
– A Lasting Power of Attorney comes into effect when an individual is still alive, but lacking the cognitive or physical capacities to make decisions independently.
What about an Ordinary Power of Attorney?
An Ordinary Power of Attorney gives someone the authority to make decisions and take action about your finances while you still have mental capacity.
A Lasting Power of Attorney also gives someone the authority to make decisions and take action about your finances. It can also give authority to make decisions about your health and care.
A Lasting Power of Attorney remains valid if you lose mental capacity and are no longer able to make your own decisions, whereas an Ordinary Power of Attorney is no longer be valid.
More on a Lasting Power of Attorney or LPA
A Lasting Power of Attorney can give:
1. Responsibility to conduct another’s financial affairs
2. Additional responsibility to make decisions with regard to health and welfare on behalf of another person who is no longer capable of doing so themselves.
Who is an LPA granted to?:
1. An LPA is usually granted to someone who is responsible.
This means that an individual has to be over the age of 18 and be able to make your own decisions in order to be granted Power of Attorney.
You can’t be a property and financial affairs attorney if you’re subject to a Debt Relief Order or bankrupt.
2. It is granted to someone trusted by the person who is delegating this authority.
Often it is therefore a family member or someone who long standing, close friend who the person has absolute confidence in.
And so what is a Grant of Probate?
‘Probate’ or ‘administering the estate’ as it’s sometimes referred to, is used when talking about applying for the right to deal with a deceased person’s affairs.
Probate is the process of proving and registering with a section of court known as the probate registry, the last Will of a deceased person.
The person who usually deals with the estate of someone who dies is usually the executor of their Will.
This person is specifically named as the executor in the will and they both administer the estate and handle the disposal of their assets and debts.
In order to get authority to do this you need a legal document:
and this is called the Grant of Probate.
It is the Grant of Probate that authorises the Executor to arrange the deceased affairs in their name.
How can you apply for Probate?
You need to fill in a probate application form PA1 (available online at hmctsformfinder.justice.gov.uk).
You can do this yourself or it may be easier to get a Solicitor to help you.
But why do you need a Grant of Probate?:
When administering the estate, for a lot of the official capacities an Executor needs to engage in, proof is required.
This includes banks, financial authorities, and estate agents.
It is understandable why proof is required, not only as you may be dealing with vast sums of money and assets, but someone has also entrusted you with this responsibility and regulations must be in place in order to ensure that their wishes are carried out.
Saga offer more advice on probate and also offer advice on how to apply for probate.
What happens if there isn’t a will?
If the person didn’t leave a will it is known as dying intestate.
In this case an application for a grant of letters of administration has to be made.
Similar to the Grant of Probate, this is an official document, issued by the court, which allows administrators to administer the estate.
The person to whom letters of administration is granted is known as the administrator.
If there is one, the administrator is usually a close relative of the person who has died.
The administrator is the person who has the legal right to deal with the affairs of the person who has died, and is determined by a set order of priority.
For example if there is a living husband, wife or civil partner, they will have priority over children or grandchildren.
Can a person hold a Lasting Power of Attorney for someone and be the Executor of their Will?
It is possible to have the same person be responsbile for your Lasting Power of Attorney and be an Executor for you.
Of course, having the same person for both these roles makes it vital that the person responsible is someone that you trust resolutely.
Do you want to be entrusted with a LPA or as an Executor of a Will?
To be entrusted with these things means that an individual holds you in very high esteem, so much so that they are prepared to let you make decisions on their behalf, but also to execute their wishes that are made in their Will.
If you are asked to take on the responsibility of an LPA or an Executor role, consider very carefully before you agree. Both are extremely important roles and ones that you will need to be able to take time to fulfil.
For example, if you’re acting under a lasting power of attorney, there are rules to follow when making a decision on behalf of a person who has lost their mental capacity. You can find useful information on this on the Age UK website at www.ageuk.org.uk
Something that is becoming more common is entrusting this type of responsibility to a neutral party, an authoritative body such as a solicitor that can act on your behalf.