29 Apr 2018
THINKING ABOUT THE FUTURE?
As you may have heard, there is now in Gibraltar a new law in force which enables people to plan ahead in relation to their health and personal welfare and/or their property and financial affairs, should they ever lack the capacity to make these decisions in future.
LASTING POWER OF ATTORNEY
The Lasting Powers of Attorney and Capacity Act 2018 establishes and makes provision relating to persons who believe that at some point in the future they may lack capacity to manage their health and welfare, and/or property and financial affairs (which can relate to questions of, for example, hygiene and daily attire). It allows such persons to give authority to one or more individuals jointly to make certain decisions on their behalf, and provides for the creation and registration of lasting powers of attorney. The powers which the person will be provided with will be clearly set out in a legally binding document, which must be signed by the person who is giving the power in the presence of two or more witnesses. You must be aged 18 years or over to create a lasting power of attorney. Likewise, the person who is granted the power must be aged 18 years or over.
ADVANCE DECISIONS TO REFUSE TREATMENT
A person who is aged 16 years or over and has capacity to make a decision regarding medical treatment may make an ‘advance decision’ concerning future treatment. In this instance, the person would specify that certain treatment is not to be carried out or continued by the person who is providing healthcare, in the event that the person in question lacks capacity in future to consent to/refuse medical treatment.
WHO LACKS CAPACITY?
A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. A person is assumed to have capacity unless the contrary is shown.
LEGALITY OF THE WILL
So that a Will is legally valid, you need to ensure that:-
It is made in writing;
Signed in the presence of two witnesses
The person making it is of sound mind (i.e. has capacity) and is not a minor;
It is made voluntarily; and
The witnesses are not persons who will inherit under the Will.
Any changes to a Will can be made by a codicil which will have to be signed in the same manner as the Will, in the presence of two witnesses. In cases where the Will is to be substantially amended, a new Will should be made revoking all former Wills and Testamentary dispositions.
PROBATE
Upon the death of the person who has made the will, the persons named as Executors must apply to the Supreme Court of Gibraltar in order to obtain a Grant of Probate of the Will which names the Executor(s) as the person appointed to manage the estate of the deceased. The Executor will ensure that the estate is distributed in accordance with the wishes of the person leaving the Will. There is no inheritance tax payable in Gibraltar so the estate can be distributed free of any estate duty liability.
WANT ASSISTANCE IN PLANNING AHEAD?
Attias & Levy will be able to assist you to plan ahead and safeguard for the future. We will be able to help you so that your wishes may always be respected when it comes to your property and/ or your personal health in the event that you may suffer an illness in future or have an accident, which causes you to lack capacity, or upon your passing.
For a consultation, please call our offices at +200 72150 or email us at attlev@gibraltar.gi . We will be more than happy to assist.