New power of attorney guide

Primrose

I'm not a legal expert but I wouldn't think the death of a witness to a will wouldn't  matter unless the will was very contensious and it became the subject of a court legal dispute because after all some people make wills very early in life, their circumstances never change and that will can still be valid many years later.
  I would only be temped to remake your will if your financial conditions or your wishes have changed.

Like you I think the death of a certifying witness to a P of A would only matter if somebody were to raise a dispute with the Office of Public Guardian regarding the way an attorney was handling the individual's affairs.  If somebody with a legal background has views to the contrary it will obviously be interesting to be made aware.

Malthusian

peteduk said:

We have been considering whether or not we have to renew our wills because 1 witness is now unfortunately deceased, and the other is in poor health. (I understand that it can cause probate problems but am not sure what if this is the case - our daughter is executor and did not know the witnesses or their family).

You don't necessarily have to do that unless you think there's a realistic possibility that the Wills could be challenged on the basis that you didn't actually sign them and the witnesses' signatures were fake. (Although it also can't hurt.) The Wills Act is explicit that Wills are not invalidated when the witnesses die (or become unable to testify).

It crossed my mind to ask if the death of witnesses also have an adverse effect on any aspect of the POA execution process? (To my mind it shouldn't because validation was made by the OPG at time of application).

As with Wills, it shouldn't matter. Unless someone can plausibly claim that the whole document was completed fraudulently and the witness signatures are fake. Given that you also have to obtain the signature of a "certificate provider" (who can also testify to the fact it's legitimate) and can optionally nominate people to be notified when the document is registered, it's probably even more of an uphill struggle to convince a judge than with Wills.

peteduk

Thank you for your reassurance.
In both cases I do not expect a challenge but for the will there are warnings on the net which aren't reassuring.

(A life policy mentioned in my wife's will is maturing soon so the clause related to that will become irrelevant so that may be another reason to consider changing the wills).

Warning Example:
"At the outset of probate proceedings, if the witnesses have not survived, the executor will be required to produce proof that the original witness signatures were valid, as well as proof of the witnesses' deaths. Clearly this can be difficult; there is no cohesive guidance on the nature of this proof of validity, although proof of death is easy to produce. As such, rather than tempting fate you should consider adding new witnesses to your will in the event of the death of the original witnesses.
However, you should be reassured by the fact that wills are rarely challenged; probate authorities understand the problems faced by executors and beneficiaries, and use their discretion accordingly."

Our daughter who is executor does not know the witnesses or their family so proof of death may not actually be as straightforward as implied, if needed. My thinking is to remove any possible obstacles at a difficult time so we will probably change the wills.

Thank you again,

PS I appreciate this is a POA thread - sorry for hijacking it, albeit unintentionally.

Primrose

Don,t apologise. You,ve raised what could be a valid query and we all learn by following the discussion.

wmathias

My step dad has two step daughters from two different marriages. He is now not married to either my mum or the other step daughter's mum. My step dad has done an LPA for financial with both me and the other step daughter as executors. However, he didn't do health, as he said we know what he wants regarding health decisions. Will the fact neither of us are blood relatives with him make a difference when it comes to health decisions if he loses his faculties?

ALSTON18

I think the new guide might mention the possibility of having a joint bank account in addition to a Finance & Property LPA. If the person who might have difficulty in the future (the potential Donor in an LPA) can trust somebody enough, having a joint bank account makes life very much simpler. Also, when/if the Donor dies it means that the account is not blocked and funds are available to pay for a funeral, other bills, etc. Although theoretically the surviving account holder will (I think) be entitled to half the account balance, in practice that can simply be included in the deceased's estate. I had this arrangement with my late mother, and it made managing her affairs for her much simpler.

Rosie1980

If a bank is made aware that one of the joint account holders has lost mental capacity they can freeze the account. In order to ensure you can deal with someone's funds an LPA is essential.

sheramber

ALSTON18 said:

I think the new guide might mention the possibility of having a joint bank account in addition to a Finance & Property LPA. If the person who might have difficulty in the future (the potential Donor in an LPA) can trust somebody enough, having a joint bank account makes life very much simpler. Also, when/if the Donor dies it means that the account is not blocked and funds are available to pay for a funeral, other bills, etc. Although theoretically the surviving account holder will (I think) be entitled to half the account balance, in practice that can simply be included in the deceased's estate. I had this arrangement with my late mother, and it made managing her affairs for her much simpler.

in the case of a joint account the surviving account holder automatically owns ALL the money in the account.

Primrose

wmathias p. Will the fact neither of us are blood relatives with him make a difference when it comes to health decisions if he loses his faculties?

It could make a difference I think in hospital or GP decisions because just knowing what he wants does not give you any authority to demand it on his behalf.  In fact I think you will find you have no authority at all . We ,ve lodged a copy of our health & welfare poa and its conditions with  our GP and given our attorneys permission to access our medical information when they need involvement.