A will is a legal document, signed in the presence of two witnesses, that states what should happen to your estate (your assets) after you have died. It allows you to name persons (your executors) who will carry out your wishes after death.
Whatever age you are, writing a Will is the only way to make sure your wishes about your assets after your death are fulfilled. Many of us die without making a Will and believe our wishes will be honoured, anyway. This is not always the case. A Will can make life easier to distribute your assets in the way you wish while avoiding any unnecessary taxation.If you do not make a Will, the law, and not you will decide on the distribution of your assets.
If you would like to make a Will, talk to a solicitor. You can find a solicitor by checking the Law Society’s website here.
Enduring Power of Attorney (EPA)
An Enduring Power of Attorney is an arrangement for how to manage your affairs if you lose capacity in the future. It is a legal document in which you choose people who you trust to act on your behalf if you cannot decide for yourself. Whoever you choose must be someone you trust. An EPA can grant them use of and control over your assets and control of decisions about your personal care, like where you live, who you see, and what you wear. Normally, the person you choose is a spouse or someone close, one of your children, a trusted friend, or a sibling.
If you are considering an EPA or would like to find out more about it, it’s important you do so sooner rather than later as an EPA needs to be prepared when you’re in good health and have capacity.
You will need a solicitor to guide you through this process. You may qualify for legal aid if you cannot afford to pay legal fees. You can find a solicitor by checking the Law Society’s website here.
Naming a legal guardian
If you are a parent who has children under the age of 18 or has someone who depends on you for care, it might help to prioritise making a will.
It is impossible to plan for every occurrence, but making plans for your dependant’s care in the event of your untimely death is one step you can make to ensure the continuation of their welfare and future well-being. Your solicitor will guide you in making informed decisions. They will discuss with you options and issues you may not have considered and will help you think about the continuation of care. They will also recommend that anyone you choose to take over the care of your dependents is asked and you should discuss your wishes with them. If you have more specific wishes for your dependant’s upbringing such as education, religion, it is best to record in writing with your solicitor.
A guardian can be anyone who is over the age of 18, not in prison, and is of sound mind. Remember, you can always change your mind. Doing this is a simple process with your solicitor. Review your wishes every 5 years or following major life events, such as divorce.
Choosing someone to act on your behalf
Because of accident or illness and at any time in our lives, we could lose our ability to decide about our health care or medical treatment. When this happens, these decisions will need to be made by someone else.
We can decide now who we would like to make these decisions for us. In an AHD, this person is called a Designated Healthcare Representative.
What is a Designated Healthcare Representative (DHR)?
A designated healthcare representative is a person who makes a health care or medical treatment decision for a person who has lost decision-making capacity.
To put it simply when you nominate someone to speak on your behalf they ’use the voice’ of the person to make the decision. Generally the DHR decision has the same legal effect as if the person had capacity and had made the decision themselves.
A Designated Healthcare Representative will not need to make the decision if the person without capacity has recorded their wishes in a valid Advance Care Directive. The Directive will ‘tell’ your decision maker what you want and do not want to happen.
What decisions can a Designated Healthcare Representative make?
A Designated Healthcare Representative can make most health care or medical treatment decisions for a person who has lost capacity. These decisions can include whether life-sustaining treatment should be provided or withdrawn.
What should a Designated Healthcare Representative consider when making a decision?
If you have been given the priviledge to speak on someone’s behalf you need to consult their Think Ahead document and Advance Healthcare Directive to inform you of the persons wishes. As you are stepping into their shoes consider what the person would have wanted if they had capacity.
For more information and guidance on being a Designated Healthcare Representative please visit https://www.decisionsupportservice.ie/
There are lots of decisions to make when planning ahead, and they are all ‘slightly’ different.
We have put together the following table to help you understand what document does what and with who.
|Think Ahead||Medical Summary Form||Advance Health Care Directive||Enduring Power of Attorney||Last Will|
|What is it?||An Advance care planning tool where you;|
• make decisions ahead of time
• where you would like to be cared for
• what is important to you
• where you receive care.
• Advance Healthcare directives,
• having difficult conversations,
• what you want to happen after you die
|A summary of an Advance Healthcare Directive and Think Ahead.|
To be completed and given to your GP to have added to your record.
|A document to set out your wishes about medical and healthcare treatment in case you are unable to make these decisions in the future due to lack of capacity.|
Includes a method to;
• Record treatments you do not want to have (refusing treatment).
• Request treatments you would like to have.
• Complies with ‘common law’ until commencementof Assisted Decision Making (Capacity) Act (2015)
|A legal document which allows you to choose to someone (attorney) to look after both your personal and financial affairs in the event that for any reason you lose your mental capacity in the future.||A will is a legal document that sets out your wishes on distribution of your property accrued over your lifetime and the care of any dependants. If you die without a will, those wishes may not be carried out in the way of your choosing|
|Do I need a solicitor to complete?||No – but let your solicitor know you have completed one||No||No||Yes||Yes|
|Do I need help from a GP?||No, but share with your GP/ Healthcare team||Yes discuss with your GP and add to your records||Yes, they can advise and support you||Yes, to test for capacity||No|
|Name of the person you choose to act on your behalf||Trusted person||Trusted person AND a Designated Healthcare Representative||Designated Healthcare Representative||Attorney||Executor|
|It comes into power||Can be referred to before and during, illness, admission into nursing homes, care in hospitals or hospice and after death||When capacity is lost through illness or accident for example: through a stroke, a brain injury or dementia||Only are used in the case of incapacity||Only are used in the case of incapacity verified by a doctor||A Will is read after death|
|Can it be used to sell my property?||No||No||No||Yes if stated explicitly by you when being drawn up, (only in the case of incapacity)||After your death yes (if you have stated that in your Will)|
|Can it used to put me in a Nursing Home?||You can use Think Ahead to discuss nursing home care with those important to you||Again you can discuss your preferences with your GP||No||Yes if stated explicitly by you when being drawn up, (only in the case of incapacity)||No|
|Refusal of healthcare treatment||No, Think Ahead will guide you in completing an AHD||No – it is a summary of what you state in your AHD||Yes, an AHD is a legal document where you can refuse treatment||No||No|
|Requesting healthcare treatment||No, but Think Ahead will guide you in completing your AHD||No||Yes you can record your request in an AHD but it is not legally binding||No||No|
|Choosing where to die||Yes||Yes||No||No||No|
|Organ and Tissue Donation||Yes Think Ahead will guide you||No||No||No||No|
|Body Donation following death||Yes Think Ahead will guide you||No||No||No||No|
|Funeral plans||Yes Think Ahead will guide you||No||No||No||No|
|Useful place to store and record legal and financial information that could be important for those who need to know at a later date||Yes Think Ahead is now a pack with a sleeve to store useful information||No||No||No||No|