HIV disease is not a death sentence and people who are newly diagnosed usually need reassurance about the quality of their future life, not how to prepare for their eventual death. However it is also the case that some at least of the fears about dying from diseases associated with HIV infection can be lessened by some basic long term preparation by the person with HIV (and their partner, if they have one) before illness makes this process much more difficult. These are important decisions and should not be left to the last minute.

Long term planning points to think about:

• Making a will and appointing an executor.
• Organising power of attorney.
• Organising property, money and papers in the best way.
• Settling disputes with family and friends.
• Making funeral arrangements.

Dying without a will

If anyone dies without making a will (sometimes called dying `intestate'), strict rules govern who will inherit their property, including money and personal possessions. It is especially important to make a will if you are gay or unmarried or have a partner you wish to provide for.

If there is no will, the person is said to have died intestate, and the law decides who is to get what. Under the rules of intestacy, only a husband or wife, children and blood relatives are entitled to inherit under a complex formula.

Without a will, gay men and lesbians, unmarried partners, lovers and friends, however long the relationship and whatever the true wishes of the person dying might have been, have no automatic right to inherit anything. Although they might in limited circumstances be able to make a legal claim for financial provision out of the estate, this will be an expensive, slow and uncertain process. Only a husband or wife, children and blood relatives are entitled to inherit property and money.

You cannot choose who will make the funeral arrangements and take care of your affairs after death without making a will.

Making a will

You can decide what will happen to everything that belongs to you. You can make sure that your partner, friends or charities receive exactly what you wish, although you may not have a completely free hand if you have dependents, children, a spouse or a former spouse.

It is worth making a will even if you think have no property to speak of.

By making a will, you decide who will look after your affairs and take care of all the arrangements after your death – see Executors below.

If you have children under 18 you may be able to appoint someone to care for them after your death – see Guardians below.

You can express any particular wishes you may have about your funeral – for example, you might have a preference for cremation or burial, church service or informal wake.

A valid will can only be made by a person of at least 18 years of age and with the appropriate mental capacity both when giving instructions for the will and when executing it.

Mental capacity means that the person making the will must understand the nature of the act and its effects, the extent of the property which is being disposed of, and must be able to comprehend and appreciate any claims which ought to be considered, for instance by relatives. If there is any doubt at all then the advice of the person's doctor should be obtained.

Your will is something you need to think about calmly, while you are free of other pressures. Although a will can be prepared very quickly in an emergency, it is much better to take ample time to consider carefully what it should say and to make sure that you are happy with the arrangements you have made.

A valid will cannot be made by anyone suffering from mental incapacity. Because of the possibility that that might happen, it is very important to make it sooner rather than later. This will give you the comfort of knowing that your wishes have been recorded.

Making a will now does not mean that you can't change your mind later–see Changing your will, below.

Making a will is not a difficult process, but although standard do–it–yourself will forms are available from stationers it is better always to take professional advice from a solicitor or an advice centre dealing with wills. A will is a legal document and should be drawn up carefully and signed and witnessed in a particular way. If you write it yourself it may turn out to be invalid, or there may be legal ambiguities in what you thought were clear requests.

Executors

Your executor is the person you appoint in your will to look after your affairs after your death, and is responsible for carrying out the wishes in your will, including arranging your funeral. In some cases (for instance if children may inherit), you should choose two executors, not just one.

An executor should be someone you trust and who will be able to cope with any paperwork, with the help of a solicitor if need be. If at all possible, they should be on hand as it is very difficult to deal with someone's affairs from a long way away. If you must choose someone who lives abroad, there is a risk of uncertainty and additional legal expense unless they are able to spend time here. Many people appoint the person who is to receive most of their property and their money, but you may choose to appoint a close relative or friend whether or not they are to inherit anything, or sometimes their solicitor. It is sensible to check with your chosen executors that they are willing to undertake the task.

Work out roughly what you own and what debts you have. Remember to include money in the bank or building society, and your home if you own it. You do not need to list everything you own but it will help if you know what sorts of things you possess. Do you, for example, have any shares or National Savings Certificates, or any particularly valuable personal belongings, or life insurance? Make sure you leave this list somewhere obvious. You can only give away money and property after all your debts and liabilities have been paid and discharged.

Particularly if you are not well off, you should be aware that your funeral expenses are the first thing to be paid out of your property when you die, ahead of any debts or legacies. A funeral, especially one abroad, could use everything up. If there is not enough money to pay for it, friends or relatives may have to foot the bill, or depending on the situation, it could be paid for from social security.

If you own property in another country, it may be necessary to make a separate will in that country dealing with that property. You will need legal advice from a lawyer familiar with the law in that country.

If you have someone who is dependent on you and needs to be provided for, think of them first: if you don't plan to leave them everything, decide what they will need, and then consider what personal belongings, property, money or other assets you wish to leave to other people. You might also want to consider a gift to charity.

In some circumstances a spouse or former spouse, children or anyone you have maintained such as a partner may have a claim against your estate whether or not you have provided for them in your will. A lawyer will be able to advise you about this.

Some things that cannot be given away in a will

Your share in a jointly owned house or flat, joint account or any other jointly owned property may pass automatically to the other joint owner on your death, or may be subject to the terms of your will, or the intestacy rules. It depends on the exact legal basis of ownership, and you should seek legal advice about your particular circumstances, especially if a flat or house is involved. It is also possible to change the basis of ownership of joint property, but this must be done with legal advice.

Benefits such as `death in service' benefits and discretionary payments from personal schemes payable by your employer cannot be left by will. If you have formally nominated someone to receive the benefit it will normally be given to that person, but the final decision will be at the discretion of the trustees of the scheme. You should check with your employer that you have made a nomination and that it is up-to-date.

Guardians

The law concerning the appointment of guardians to care for children is quite complicated, and you should always seek legal advice on your proposed arrangements. To summarise:

• If you are a single mother you can appoint a guardian in your will who will in most circumstances be entitled to care for your children on your death.
• However, if you are married to or divorced from the children's father, or if he has parental responsibility, the guardian you choose may not normally take over responsibility for the children until after the father's death.
• If you are a single father who has not been married to the mother, you have no automatic right to appoint a guardian, but should seek legal advice as you may be able to acquire parental responsibility.

See also Children, adolescents and families.

Changing your will

You can change your will at any time so long as you are fit to do so, so do not put off making one because you think you might change your mind.

Never try to change your will yourself. It can only be altered by a separate legal document called a `codicil'. Do not try to prepare a codicil without professional advice. Alternatively you can have a new will drawn up and revoke the old one.

If you get married, any existing will is revoked unless it specifically refers to the proposed marriage. You should make a new will as soon as you marry. Divorce also affects your will and you should consider making a new will if you get divorced.

Enduring powers of attorney

A Power of Attorney is a document whereby the donor gives the power to act on his or her behalf to another person, the `attorney'. This ensures that the person of the donor's choice is legally entitled to act for them should they become unable to handle their own affairs. A Power of Attorney can be `ordinary' or `enduring'. An ordinary power is usually employed for a specific purpose such as the sale of property or for a restricted period of time and it automatically lapses if the donor becomes `mentally incapable'. An enduring power by contrast can have very wide powers and most importantly it continues after the donor is deemed incapable as long as it is clear that this is what the donor intended and the legal formalities have been followed.

For people who are concerned about the possibility of becoming seriously ill or mentally impaired the enduring power of attorney is more appropriate and it can be designed to take effect only when they become incapable of handling their own affairs.

Who can be an attorney?

The donor has almost complete freedom in their choice of attorney. The only restrictions are that the attorney(s) must be over 18 and cannot be a bankrupt. Most people choose their partner or spouse, a close friend or family member, or their solicitor.

Legal formalities

Enduring powers have strict rules to prevent any possibility of exploitation of the donor. They must take a specific legal form and they must be independently witnessed. Having said that, they are quick and easy to do in comparison with making a will. Standard forms for powers of attorney are available some local HIV agencies and from legal stationers.

Registration of enduring powers

If an attorney believes that the donor is or is becoming mentally incapable the enduring power must be registered at the Court of Protection for a fee. The attorney does not have to produce medical evidence to support the application but the donor and his or her family must be told in case they object. If there is an objection the Court will hear the objection before deciding to register the power.

Once registered the donor cannot revoke the enduring power of attorney without the intervention of the Court and neither can the donor change the scope of the powers. The attorney is also bound by the power of attorney and cannot stop acting as attorney until notice has been given to the Court.