The cost of not writing a will

When a close one suddenly passes away, it can be a shock for the whole family.  My Mum was diagnosed with terminal cancer in June this year and passed away in August.  Even now, it is hard to believe that she has gone.  However, I am grateful that Mum had a Will.  It has made things a lot easier to deal with.


This was nearly not the case when a family friend passed away earlier this year.  For the purpose of this article, I will refer to him as Tom.  Tom first asked me to write his Will in 2016 as he knew he had terminal cancer.  Despite this, Tom kept putting it off and eventually signed his Will one week before he passed away. Tom’s Estate was bequeathed to a close friend.

Had Tom’s Will not been signed, he would have died intestate and his whole estate would have gone to the Crown, as Tom had no surviving family.


Only with a valid Will can you be certain that your estate will go to the right people:

  • you can specify how long funds must be held in trust for children, to any age you deem appropriate.
  • You may wish friends or charities to benefit.
  • You may also want to outline personal wishes, such as funeral arrangements or who should inherit particular property or items of worth.
  • You may also exclude family members who you don’t want to benefit from your estate in a will.

Even if you have made a will, you need to ensure it is updated.


If you do not draw up a proper Will:


  • the rules of intestacy award none of the estate to stepchildren and live-in partners, regardless of the longevity of the relationship.
  • Unless you have a joint mortgage, the house that you share with your live-in partner could potentially be passed onto your children, parents, siblings or the state, leaving your partner homeless.
  • In the event that both you and your spouse die, you would have no say in who becomes your children’s guardian. If your child or children are under the age of 18 it is important you have a Will for this reason.
  • You may not want parents or siblings to benefit to the detriment of your spouse.
  • There may be personal wishes that cannot be fulfilled without a will.
  • Friends or charities would not benefit.
  • Failure to have a Will can cause acrimony and complications. Look no further than famous stars such as Barry White, Bob Marley and Jimi Hendrix whose families squabbled for years because they all died intestate.


A client’s mother recently passed away and they were unable to find the Will.  Not knowing their mother’s wishes, they decided upon a cremation ceremony.  Only weeks after the funeral, they found a document stating that their mother had purchased a burial plot many years ago.  This has been difficult for the family to come to terms with, knowing that their mother’s wishes have not been met.


It is vitally important that family members know where your Will is kept and that a duplicate is stored with a Will writer or financial adviser.


For an informal chat, contact Dawn on 01969 623092.


Dawn Clarkson – Wills and Estate Planning Ltd, Thornborough Hall, Leyburn.

(Sister Company to Dawn Clarkson Associates)


Drop is sessions: Reeth Memorial Hall, 1st  Friday of every month – 9am to 12pm from April 2018


Can I protect my home from Care Costs?

Can I Protect my Home from Care Costs?

Protecting our homes from care costs is at the forefront of many people’s minds.

It is important to be aware that there are many unregulated providers in the market offering asset protection to protect your home from care fees.  Some of the arrangements are successful but it is a lottery.

If North Yorkshire County Council (NYCC) believe that your home or your money have been given away deliberately to avoid paying care fees, then they have the power to recover any money that they are owed.  This may mean that if the property has been put into a trust, NYCC may ask for the care fees to be paid by the trustees.

However, you are entitled to a free needs assessment to consider what help can be provided to help you stay in your own home.

A needs assessment is a discussion between you (or the person you look after if you are a carer) and a trained person, either from NYCC or another organisation that they work with. You will talk about the care and support needs you have and how these affect your wellbeing. This will include identifying any physical needs, such as whether you need help to wash or dress, get in and out of bed or keep your home safe to live in. The assessment will also look at your mental and emotional needs and ask what is important to you in how you live your life, such as being able to carry on working or volunteering, or being able to meet your friends.

A needs assessment won’t ask about your finances.

To discuss an assessment with the Local Authority, contact:

Email: or Phone 01609 780780

Paying for Care

Different ways to pay for care and support are available, so people should not have to sell their home in their lifetime to pay for care.

A Deferred Payment Agreement is an arrangement with NYCC that will enable people to use the value of their homes to help pay for care home costs. If you are eligible, NYCC will help to pay your care home bills on your behalf. You can delay repaying them until you choose to sell your home, or until after your death.

You might choose to rent out your home and use the income to reduce the amount you asked to defer.

Your home and your money still belong to you if you have a Deferred Payment Agreement, so you can make gifts to your children. But a Deferred Payment Agreement for care costs will always need to be repaid – either by the sale of your home after your death, by someone else, or by something like the pay-out from a life assurance policy.

Carers and families can help people to make decisions about their care and how to pay for it. If NYCC are concerned that the person applying for the Deferred Payment Agreement does not have the capacity to understand, or won’t have capacity to understand in the near future, then another person may need to represent them. Only a person that is properly authorised, like someone with legal power of attorney, can represent someone in applying for a Deferred Payment Agreement.

For an informal chat or to discuss legal powers of attorney, contact Dawn on 01969 623092.


Dawn Clarkson – Wills and Estate Planning Ltd, Thornborough Hall, Leyburn.  

(Sister Company to Dawn Clarkson Associates)  

Drop in sessions: Reeth Memorial Hall, 1st Friday of every month – 9am to 12pm from April 2018

Email: or Phone: 01969 623092

Lasting Power of Attorney – Fact Sheet

Lasting Power of Attorney – Fact Sheet


A Lasting Power of Attorney (LPA) is a legal tool that allows you to appoint someone to make certain decisions on your behalf. The appointed person can manage your finances for you in the future if you reach a point where you are no longer able to make decisions relating to your health and welfare. This sheet explains what an LPA is and you should consider making one.


There are a number of ways that you can plan your care for the future, this is called ‘advanced care planning’. The purpose is to allow you to make choices and decisions about your future care, in case there is a time in the future when you are unable to make decisions for yourself (lacking mental capacity). This can ensure that a person that you have nominated has the power to act on your behalf in situations that you have agreed, and that you are not given treatment that you don’t wish to receive.




A Lasting Power of Attorney (LPA) allows you to choose a person you trust to act for you, this person is referred to as your attorney.


There are two different types of LPA; property and affairs, and health and welfare. Each type covers different decisions and there are separate application forms for each. You can choose to make both types, or just one. You can have the same attorney for both, or you can have different attorneys.


Property and Affairs LPA


A property and affairs LPA covers decisions about your finances and property. If there comes a time when you can’t manage your finances any more, your attorney will do this for you. This can include paying your bills, collecting your income and benefits, or even selling your house. If you wish, you can restrict their powers, or place conditions on what they can do. It can only be used once it has been registered with the Office of the Public Guardian (OPG). The OPG is responsible for the registration of all LPA’s. Once registered, it can then be used, even while you have mental capacity with your consent.


Health and Welfare LPA


A Health and Welfare LPA allows the attorney to make decisions on your behalf about your health and welfare. Your attorney could make decisions about where you live, or day to day care including your diet and what you wear.


You can also give your attorney the power to accept or refuse life-saving treatment on your behalf. You would be asked whether you wish to do this or not on the form, and you will need to clearly state your intentions.


A health and welfare LPA can only be used once the form is registered with the OPG and you are in a position where you no longer have the mental capacity to make decisions about your own welfare.


Benefits of making an LPA


  • It can be reassuring to know that, if you are unable to make a decision for yourself in the future, your chosen person can make these decisions for you.
  • Registering an LPA ensures that the person that you want to make decisions on your behalf is able to do so. This also prevents a stranger, or someone you do not trust, from obtaining this power.
  • An LPA can reduce problems that may occur in the future. It can be more expensive and time consuming for family and friends to try to gain a similar power in the future if you do not already have an LPA.
  • Registering an LPA can help prompt discussions with your family or friends about your future wishes.


Who can make an LPA?


To make an LPA you must be over 18. You must also have the mental capacity to make this decision, this means that you are deciding for yourself that you wish to make the LPA, and that you understand what this means.


Who can be an attorney?


You can choose anyone to be your attorney, provided they are over 18. For a property and affairs LPA they cannot have been declared bankrupt.


It is important to think carefully about who you wish to appoint, it should be someone that you trust, and is reliable and has the skills necessary to carry out this role. You can choose to have more than one attorney.


Most people will choose a relative or close friend, but you can also ask a professional who you trust, for example your accountant.


You should also consider appointing a replacement attorney, if your first choice attorney is no longer willing or able to be your attorney.


How an attorney acts


If you choose to have more than one attorney, you must decide how your attorneys will act. They can make decisions together (‘jointly’), they can act together and separately (‘jointly and severally’), or a combination of the two:


  • Jointly – means that the attorneys must always act together, and therefore must agree all decisions and both sign all documents.
  • Jointly and severally – attorneys can act together, but can also act on their own.
  • Jointly in some matters and severally in other matters – for certain decisions all your attorneys must agree, but for other decisions they can act independently. For example, decisions regarding selling a property or medical treatment could be for all attorneys to agree, but other decisions concerning diet or dress they could act on their own.


When making decisions your attorney must follow the Mental Capacity Act, this means that they:


  • Must act in your best interests
  • Must consider your past and present wishes.
  • Cannot take advantage of you to the benefit of themselves.
  • Must keep all of your money completely separate from their own.


If the attorney fails to comply, the LPA could be cancelled. If an attorney has taken advantage of you, this will be investigated by the OPG and the person could face prosecution. Having an LPA in place can therefore offer you protection from potential future abuse.


Making a valid LPA


You will need to decide on someone to witness your signature on the LPA, and to state that you have the mental capacity to make an LPA. The signed form is a certificate of capacity and the person is called the certificate provider. They can be:


  • A professional, like your Doctor
  • Someone who has known you for at least two years, but isn’t a family member or an attorney, and they will not benefit from the LPA, i.e. a family friend or neighbour.


Each attorney must sign the form to say that agree to act as your attorney if needed in the future. They will also sign to show they understand the duties that this involves. You are also asked to list one or more named person. This is someone who you want to be notified when we register your LPA. This could be anyone, i.e. a friend or relative could be your ‘named person’. The purpose is to provide you with an additional safeguard. I none are listed, an additional certificate of capacity must be provided.


Next steps


The forms will be sent to the Office of the Public Guardian. The form must be registered with the OPG before it can be used. There is a fee for registering each LPA (this is currently £82.00 each), so if you are registering a property and affairs LPA as well as a health and welfare LPA, the fee will be £164.00. You may be exempt from having to pay the fee if you cannot afford it and are in receipt of certain benefits. Also if you earn less than £12,000 per year then we can apply for a 50% reduction of your fees.


Office of the Public Guardian


The OPG is responsible for the registration of all LPA’s, including dealing with objections and maintaining the register of LPA’s.


The OPG will also deal with any issues (or complaints) about the way that an attorney is exercising their powers. If there are any problems, the OPG may pass the case on to the Court of Protection, who can:


  • Decide whether a person has capacity to make decisions for themselves.
  • Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions themselves.
  • Decide whether an LPA is valid.
  • Remove attorneys who fail to carry out their duties.
  • Hear cases concerning objections to register an LPA, i.e. someone may object to an LPA being registered if they feel that person was forced into making it. Or that the proposed attorney was not suitable.


Contact Us

Wills and Estate Planning Ltd,
Thornborough Hall,
North Yorkshire DL8 5AB

Tel: 01969 623092


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Wills and Estate Planning ltd is licensed by the Institute of Chartered Accountants in England and Wales to carry out the reserved legal activity of non-contentious probate in England and Wales.

Details of our probate accreditation can be viewed at under reference number C004760414