During this worrying and unprecedented time, it may be that you have turned your mind to sorting out the ‘to-do’ list. “Get Will done” is often one of those things that’s been languishing at the bottom of the list. For many people now feels like a good time to get it done.
But how do you give your instructions to your solicitor when unable to meet face to face? How do you get the Will witnessed? How is one supposed to do that in a lockdown with social distancing the requirement for everyone, or if you are in the category of most vulnerable people who should avoid leaving the house at all?
Helping you to make a Will while you are in self-isolation or shielded
It’s still perfectly possible and we can help. We have a range of communication methods to have client meetings without meeting in person. We can do this simply on the phone to get the process started or if you want to see a friendly face, video conferencing facilities such as Skype, Zoom etc. are very effective.
Taking legal instructions remotely
Normally, when a new client meets with a lawyer face-to-face at the first meeting, the lawyer has to verify the client’s identity using documents, such as a passport or driving licence. This is a legal requirement and if you are a new client this is still a requirement, in spite of Coronavirus. We can also verify your identity online in many cases.
In order to take your instructions for a Will, we can do this remotely but we do need to do a video conference call with you for that. In this way, we can take instructions in the knowledge that you have capacity to give instructions and these are your wishes and not someone else’s. It is harder to be certain about this if we only have a telephone call where there is no visual contact.
Once we’ve discussed and agreed with you how you want your Will drawn up, we create a draft document and email it to you for you to review. Once you are happy with it, we will email a final version for you to print out for signature.
Tips for signing legal documents during Coronavirus
You must sign the actual document yourself in person. Electronic signatures are not accepted on Wills. You also need the signatures of two independent witnesses and they do have to be physically present – again electronic signatures are not allowed. At the moment, in England and Wales, these requirements have not been amended due to the Coronavirus crisis, although it’s possible that there might be changes in the near future – we will keep this page updated.
The Coronavirus crisis presents difficulties for people needing to sign Wills. Very often people may be self-isolating or shielded. Any other people they are with in the house, are likely to be members of the family who may be beneficiaries of the Will and therefore cannot be witnesses.
The answer for many lies with the neighbours and others in local community groups. Especially in the current times, where neighbourliness is on the rise, many people will be happy to help.
In terms of the actual signing, the witnesses could stand the required 2 metres apart, in the garden if you have one, where they have a clear view of you inside the house, but separated by the glass. They can also see each other, when they in turn sign. There is the logistics of passing documents back and forth, but this can be managed through the careful washing of hands with soap for 20 seconds, as per the Government’s instructions. Separate pens can be used and gloves worn and it is not necessary for the solicitor to be present when the Will is signed.
When we send you your draft Will, we’ll include specific information about how to make sure you sign it correctly, so that it will be valid.
Rules about witnesses
The rules state that the witnesses must:
- be present at the time of signing
- sign the Will to confirm they saw you (the Testator) sign
- not be a beneficiary of any assets in the Will otherwise this makes the Will invalid
- be of sound mind and know what they are witnessing (however they don’t need to see the contents of the Will)
- be over the age of 18
- be regarded as independent i.e. they must not be close relatives.
Coronavirus and Lasting Powers of Attorney
There are two types of Lasting Powers of Attorney – Health and Wellbeing plus Property and Financial decisions. The latter gives your chosen attorneys the power to make decisions on your behalf regarding your finances. This LPA can also allow for attorneys to act while the donor still has mental capacity, if the donor wishes to grant this ability. This can be useful if the donor is unwell or self-isolating.
Health & Welfare LPAs allow you to appoint people to make medical and personal decisions on your behalf. Often people do not realise that their next of kin do not have formal legal authority to make decisions about their end of life care or treatment, if they lack mental capacity. This can come as a shock to some. The law states that although next of kin may be consulted, healthcare professionals in charge of medical treatment do not have to follow what the family members say.
This is why it is so important to have a Health and Welfare Lasting Power of Attorney (LPA) in place. It gives the attorneys the authority to make such health and welfare decisions on your behalf, rather than the doctors or other health professionals who are providing your treatment.
The LPA covers how your attorneys may act on your behalf, for your health and wellbeing. For example, this could cover any medication or medical treatment you may require, or deciding whether to place you in a care home or not. If the donor chooses, the attorneys will have authority to make decisions about end of life care. The extent of the attorneys’ legal authority is decided by you (the donor) while you still have mental capacity. The person making the power of attorney is called the donor, because they are giving authority to the attorneys, to act on their behalf, should they have lost mental capacity.
Your attorneys are not allowed to act for you until you have lost mental capacity. This means you keep control of these issues while you still have the mental capacity to make such decisions for yourself.
Having this LPA in place means that the people who you choose, will be able to decide how you should be treated medically, once you yourself can no longer do so. It is important to be aware that an LPA cannot be used until it has been registered with the Office of the Public Guardian, which means that the whole process can take up to three months. Consequently, Lasting Powers of Attorney are often something people look to put in place in advance, so that they are ready and waiting if they are needed.
During the Coronavirus crisis, it may be necessary for medical staff to communicate with attorneys by telephone or video call.
Acting as certificate provider for a lasting power of attorney
A certificate provider is needed, to confirm that the donor understands the implications of making an LPA and has not been pressurised or unduly influenced. This person is often a solicitor. The certificate provider signs the LPA after the donor has signed.
At Tees, during the Coronavirus crisis, we can still act as a certificate provider for the purposes of Lasting Powers of Attorney, even if we are not able to meet face to face to do so, as would usually be the case. In order for us to do this, we will need to set up a video conference call with you once you are happy with the documents and are ready to sign them. We can help you with setting this up if you wish.
When someone dies and leaves property, money and possessions, these assets are collectively known as their ’estate’ and it’s necessary to sort out who should receive what.
Grant of representation
In order to distribute the assets, it has long been the case in England that a ‘Grant of Representation’ is required, which proves the person doing the distribution, has the authority to administer the estate. This is an Executor appointed under a will, or an Administrator when there is no will.
Letters of administration
If a Will has been left which appointed an executor or executors, they will need to apply for a ‘Grant of Probate’. In the case where there is no Will, then the deceased’s next of kin can apply for a ‘Grant of Letters of Administration’ in order to proceed.
Up until 27th November 2018, part of the process in obtaining a Grant involved ‘swearing an oath’ confirming that the contents of the probate application were true. This had to be done in front of an independent solicitor. A recent reform of this procedure meant that swearing an oath was replaced with the need to sign a statement of truth. This was to make the process more modern and simpler for the client, because it no longer required signing in front of an independent solicitor and neither did it require a solicitor to act as a witness. However, the system has now has been changed again.
New Grant of Representation Forms from 20th April 2020
In yet another move to further modernise the probate service, HM Courts & Tribunals Service (HMCTS) has launched new standard Grant of Representation forms, which will need to be completed. The move will enable HMCTS to digitise the many thousands of applications they are sent every year. They also hope to reduce any errors and speed up the process of applying for a Grant of Representation. This means you will no longer need a signed statement of truth. After 18th May, any statements of truth that are received will be returned, with a request to replace them with the appropriate new form.
As a technologically-adept firm with our employees all presently working remotely from home due to Coronavirus, Tees welcome moves that help create a faster, simpler and more streamlined process for the benefit of our clients.
If you need any advice on what to do if someone you know has passed away, then please be assured we are open and here to help and guide you as normal.