The risks of delaying later life planning

Many people avoid planning for later life because it can be uncomfortable to confront issues of illness, incapacity, or death. There is a tendency to believe these are distant problems, or that family members will “sort it out” informally when the time comes. For some, there is also a misconception that estate planning is only for the very wealthy, or that it is a one-off task rather than a process that requires review as circumstances change.

In reality, waiting to put plans in place comes with serious risks. If capacity is lost, no Lasting Power of Attorney (LPA) can be made. Having an out-of-date will or no will risks intestacy, disputes, tax inefficiency, or unintended beneficiaries. Care decisions become reactive and can cause conflict between family members and providers.

When does estate planning become urgent?

Planning stops being ‘something to do later’ and becomes urgent when you cannot confidently assume you will have capacity, choice, and time when you need it. The legal tipping point is capacity: if someone loses capacity, they may no longer be able to make an LPA, update a will, or give clear instructions, so the family ends up in the Court of Protection, which is slow, more expensive, and far less private.

Estate planning becomes urgent when:

• there is credible capacity risk in the next 12–24 months (diagnosis, cognitive concern, stroke, major surgery, hospital admissions).
• practical dependence starts (someone else is informally helping with banking or administration).
• family complexity exists (second marriage, stepchildren, unequal expectations, with vulnerable or isolated clients).

Identifying capacity risks

The trigger for changing decision-making capacity is often earlier than people think: an early cognitive concern or diagnosis, a stroke, a significant mental health episode, or a major operation or treatment plan, essentially anything that increases the risk of sudden incapacity. Another trigger is when day-to-day dependence starts: if someone needs help managing banking, paying for care, or dealing with property, you quickly find that ‘next of kin’ has no automatic legal authority. If there is any realistic risk of capacity becoming a question in the next 12–24 months, it is urgent to prepare, sign, and register LPAs, review the will, and document wishes while the person can still decide calmly and on their own terms.

Capacity can fluctuate and the test for capacity differs, depending upon the decision to be made. For example, someone may be able to decide on daily spending but not on complex gifts or restructuring of their assets. This means that documents or transactions are at greater risk of being challenged if capacity and/or undue influence is alleged.

When capacity is borderline, you must act quickly and document intentions clearly. It makes no sense to wait for a better time indefinitely. This protects the client’s autonomy, and it also reduces the risk of successful later challenges or family disputes.

What role do doctors play?

Medical practitioners do not approve wills or LPAs; however, most can provide evidence and assessments. They might agree to act as a witness to a will, or as certificate provider in LPAs to confirm mental capacity and that they have no concerns about undue influence at the time of signing, if required.

The clinicians’ role includes writing capacity assessments/letters, documenting diagnosis/prognosis, supporting communication, and confirming ability to understand, retain, weigh, and communicate.

In contentious and/or high-value cases, contemporaneous medical evidence is invaluable.

Financial pressures

Care costs can often be a shock, especially if the care is for a long period of time or if a more intense form of care is required. You need to consider home adaptations, private case management, companionship, transport, rotating carers, deputyship administration, professional attorney fees, and disputes litigation.

If decision-making capacity is lost, there is an inability to access funds/sell property quickly and arranging suitable care is often delayed.

The benefits of proactive planning

Proactive planning reduces stress as there is clarity on who makes decisions, what the person wants, and how to pay.

It also allows for continuity of care as Health & Welfare LPAs enable the chosen decision-maker to liaise with clinicians/care providers when the person cannot.

By planning ahead, assets can be protected, as structuring and documenting arrangements avoid accidental tax/cost, reduce disputes, and ensure money is available for care. Any planning that is primarily to avoid care charges can be challenged.

If you have questions or concerns about estate planning, please contact Charlotte Pollard.