Can a Power of Attorney change a will? The circumstances are specific. But yes, this is possible.
However, having a Power of Attorney document doesn’t automatically give you the right to alter the wishes set out in a person’s will.
Here is everything you need to know about where, when, and how someone with a Power of Attorney can change a will.
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What is a Power of Attorney?
A Power of Attorney is a kind of legal document. It grants one person the legal right to make decisions on behalf of another. This is usually done when one person – the “donor” – is no longer able or willing to make decisions on their own behalf.
There are two broad categories of powers of attorney:
1) Ordinary Power of Attorney
Sometimes, a person is out of the country or has a short-term illness or accident from which they are expected to recover. However, they may be temporarily unable to manage their affairs – pay their bills, handle investments, and so on.
In this case, a Power of Attorney has conditions or a timeframe after which it will end. When the donor returns or gets better, they resume control of their affairs.
2) Lasting Power of Attorney
Sometimes though, a Power of Attorney is set up in advance in expectation of a person not being able to manage their affairs in the future.
This may be due to a long-term illness from which the donor is not expected to recover. Or perhaps an age-related condition, dementia, or another issue has impacted – or is expected to impact – the donor’s mental capacity.
This is called a Lasting Power of Attorney (LPA). It gives a trusted third party the ability – within terms that are usually set out within the Power of Attorney document – to make certain decisions on their behalf on an ongoing basis.
There are two different types of LPA, with each covering different types of decisions:
- A health and welfare LPA – gives someone the ability to make decisions about where a donor lives, the medical care they receive, and how their money can be spent to improve their quality of life.
- A property and finance LPA – lets the attorney manage the donor’s financial affairs and assets, such as their bank accounts, savings, property, investments, and do things like pay their rent or mortgage and settle debts.
Can A Will Be Changed By A Power Of Attorney?
Yes, under certain circumstances, if you have a Power of Attorney you can change a will. However, the person whose will you want to change must:
- Be over 18
- Have lost the “testamentary capacity” to change a will themselves (more on this below)
- Live permanently in England or Wales
What Is Testamentary Capacity?
In order to change your own will, you need to have something called “testamentary capacity”. This is set out in law in a series of legal cases ranging from the year 1870 to the present day.
For someone with a Power of Attorney to be able to make changes to a will, they need to show that the donor has lost this testamentary capacity. This usually means the donor does not understand:
- What a will is
- What making or changing a will means
- What their estate actually includes, what they own, or roughly how much it is worth
- Who might be able to expect to make a successful claim on their estate
- How changing the will would affect the beneficiaries
If the donor is shown not to have the testamentary capacity to change their will, as long as the other requirements are met, you can apply to a court using a Power of Attorney to see if you are allowed to make changes to a will.
How To Change A Will In The UK (Writing A Statutory Will)
An important next step in making changes to a will that someone with a Power of Attorney believes doesn’t match the donor’s current state of affairs or wishes – were they able to articulate them – is to write a statutory will.
A statutory will can be thought of as a kind of prospective replacement will. Under the Mental Capacity Act 2005, if a statutory will is ratified by the Court of Protection it will have the same legal effect as the original will.
You can also have your Power of Attorney solicitor apply for a statutory will in the event that a person dies without a will. When someone passes away before making a will, the rule of intestacy would normally mean that the authorities get to divide their assets.
This is why it’s so important to have a legal professional draw up a will that can ensure your family is properly protected and provided for in the event that the worst should happen.
Applying To Court To Change A Will
Applying to court to change a will requires certain documents and evidence:
- Copies of the existing will and any codicils
- A copy of the proposed statutory will
- Copies of the Lasting Power of Attorney document
- Medical evidence demonstrating the donor’s lack of testamentary capacity
- Information about their family and assets
This can be costly – and the costs are normally paid by the person’s estate, meaning all beneficiaries will lose out a little.
However, if the end result is a will that better matches the wishes of the person who has passed away, not only can a Power of Attorney change a will, arguably perhaps they should.
Need to discuss a relative or close friend’s will with an expert?
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