No matter how careful you are at home, at work, or just going about your everyday life, accidents can happen, which can be fatal, life-changing or could leave you with a mental impairment which means that you are unable to make decisions for yourself.

There are, for example, around 6,000 deaths in the UK every year as a result of home accidents, with falls being the most common cause, according to figures from RoSPA. And, the Health & Safety Executive reports that 123 people were killed and 565,000 injured in work-related accidents in the UK last year.

‘There is little you can do to prevent freak accidents curtailing or changing your life, but there are steps you can take to protect and provide for your loved ones if you should die prematurely or are rendered unable to look after yourself or your affairs,’ as Matthew Cooper, a Partner in the Private Client team at WBW Solicitors in Paignton explains.

The best way to ensure your loved ones are looked after and your estate distributed exactly as you choose is to leave a will. Without one, you cannot choose who looks after your children after you are gone, and everything you own will be distributed to close family members according to the strict intestacy rules, which may not reflect your wishes. The rules leave no possibility of leaving bequests to charity or close friends, for example, and if you have no living relatives, your whole estate will pass to the Crown.

Some accidents are so severe that they may leave you so mentally incapacitated that you are unable to make decisions for yourself about important matters, such as how you should live and how your financial interests should be run. For example, the British Medical Journal cites falls and road traffic accidents as the most common causes of a traumatic brain injury.

To prepare for such an eventuality, more and more people of all ages are now taking out a lasting power of attorney – a legal document which sets out who you would like to run your affairs as an attorney if you should become incapacitated.

There are two types of lasting power of attorney:

• a financial lasting power of attorney, which empowers your attorneys to manage things like your bank accounts, pension and investments, as well as paying your bills, applying for benefits, and managing your property while you are out of action; and
• a health and welfare lasting power of attorney, which gives your attorneys the right to make day-to-day decisions for you if you are no longer able to make decisions for yourself, covering activities like eating, washing, medical care, where you should live, or whether to continue with life-sustaining treatment.

The lasting power of attorney allows you to provide guidance to your attorneys on how you would like things to be managed while you are incapacitated, and places any restrictions on their powers that you feel might be required.

You can select family members, friends, or professionals to be your attorneys, provided they are over 18, are mentally capable and are not bankrupt or subject to a debt relief order.

If you pick more than one attorney, you will need to decide whether they have the power to make decisions jointly (meaning all the attorneys have to agree on the decision) or individually. Allowing them to make decisions individually is often seen as preferable, as decisions can then still be made if one attorney is unavailable.

If you do not have a lasting power of attorney in place, an application would need to be made to the Court of Protection to appoint a deputy to run your affairs.

A close friend or family member can apply to become a deputy, and they have broadly similar duties as an attorney (although a deputy would have to make a court application about whether to continue life-sustaining treatment). However, if they want to become your property and affairs deputy, they would need to show they have the skills to make financial decisions for you.

If no one you know is willing or able to step up and serve as your deputy, the Court of Protection will appoint a paid professional to do the job – either way, the process of appointing a deputy can take months and is much more expensive than registering a power of attorney.

How our solicitors can help

The drafting of both a lasting power of attorney and a will need to fulfil particular criteria to be valid, with many things to consider and legal pitfalls to avoid, so it is a good idea to get help from a specialist private client lawyer.

They will ask all the right questions to ensure you have considered every eventuality before your will or lasting power of attorney is finalised, and will make sure that the final documents are valid, legally binding, less open to any challenges and precisely reflect your wishes.

For more information on wills, probate, or any other private client issue, contact Matthew Cooper at WBW Solicitors in Paignton on 01803 546104 or email matthewcooper@wbw.co.uk.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.