We should extend lasting power of attorney after death, says expert

Nearly two-thirds of Brits don’t have a will, meaning that when they die, intestacy laws come into effect. Dealing with intestacy is time-consuming, often expensive and the person who has died has no say in how their possessions are distributed.

Helen Morrissey of mutual insurer Royal London has suggested that extending lasting power of attorney to after death could be the solution.

Ms Morrisssey, who is among the experts to have contributed to a wide-reaching report on end-of-life issues and end of life issues by the University of Bath’s Institute for Policy Reseach, said: “There is an argument that if someone dies intestate, yet has a power of attorney in place, the attorney should be able to step in as executor.”

A lasting power of attorney, or LPA, gives a person the legal authority to make decisions on someone else’s behalf. There are two types of LPA, with one covering health and welfare, and the other concerned with property and financial affairs. You can also appoint one person to do both.

Rules about making a lasting power of attorney differ slightly between different countries in the UK, but all of them automatically expire when the person dies. That means that if you have lasting power of attorney for someone you know and they die, you will instantly lose any legal authority to make decisions for them.

If they had a valid will in place, this usually isn’t a problem. Those legal responsibilities that you had will be passed on to the executors named in the will. However, if they did not have a valid will, things can become a little more complicated.

Dealing with the estate of someone who died intestate can take much longer, incurring more legal costs. Most importantly, intestacy laws will dictate who inherits from the estate – the person who has died has no say in how their possessions are divided among their loved ones. That’s why Ms Morrissey has suggested that the rules of lasting power of attorney should be changed, so that it does not expire at death.

“More needs to be done to ensure estates can be wound up in a timely fashion,” she says. “Given the cost and time issues associated with trying to settle an estate without a will in place, there is a strong argument to make for legisla­tion to be amended to allow attorneys to step in as executors should a financial power of attorney be in place.”

“The person acting as attorney has been appointed because the deceased person trusted them to look after their best interests should a time come when they can no longer make decisions for themselves. If such a person is available then it makes sense to make use of them should the person die intestate.”

Extending lasting power of attorney in this way does, she admits, raise some issues to be considered. To prevent attorneys from abusing the power they have over a person’s finances and estate, she suggests encouraging people to appoint two or more attorneys simultaneously.

“Having more than one attorney means individual attorneys’ actions would be subject to scrutiny,” she suggests, “and it is less likely they would be able to act in a dishonest manner.”

The proposed changes would, Ms Morrissey says, make managing an estate after someone dies without a will much quicker and easier.

“Such an approach would enable the estate to be settled as quickly as possible and would make it more likely to be allocated in line with the deceased person’s final wishes,” she says.

Ms Morrissey’s proposed reforms are among the expert and academic views in the policy brief Death, Dying and Devolution. It has been published with the aim of prompting the Government and other authorities to re-think and reform policies affecting end-of-life matters, to make formal processes less complicated and support easier to access, for the dying and the bereaved.