A Lasting Power of Attorney does not give an attorney the authority to change another person’s Will. Even where you are managing someone’s property and finances, decisions about who should inherit their estate remain separate.
If the person still has the mental capacity to make or change their own Will, that decision remains entirely theirs.
Where somebody is no longer able to make a Will themselves, there is a separate legal process through the Court of Protection. In some circumstances, the Court can approve what is known as a statutory Will on that person’s behalf.
If you would like a broader introduction first, our guide to what power of attorney is explains how LPAs work and the authority they can give.
Why Can’t an Attorney Change Someone’s Will?
A Lasting Power of Attorney and a Will are designed to do different things.
An LPA allows someone you trust to help with certain decisions during your lifetime. A Will deals with what should happen to your estate after you die.
Because of that distinction, the powers given to an attorney do not extend to rewriting the donor’s Will, changing beneficiaries or deciding how their estate should eventually be distributed.
This remains the case even where an attorney has quite wide authority over the donor’s finances.
Being appointed as an attorney is an important position of trust, but there are clear limits to the role.
What Can a Property and Financial Affairs Attorney Do?
A Property and Financial Affairs attorney can often help with a wide range of practical financial matters.
Depending on the terms of the LPA, this may include:
- managing bank and building society accounts
- paying household bills and care costs
- dealing with pensions or benefits
- managing investments
- buying or selling property
- dealing with tax and other financial commitments
These decisions can naturally affect the donor’s overall financial position, but they do not give the attorney the right to decide who should inherit what remains.
Attorneys must continue to act in the donor’s best interests and follow any instructions included within the LPA.
Can Someone Change Their Own Will If They Have an LPA?
Yes, putting a Lasting Power of Attorney in place does not mean giving up the right to make your own decisions.
If the donor still has the mental capacity required to make a Will, they can make a new Will or update an existing one themselves.
An LPA is there to provide support where it is needed, not to take control away from someone who is still able to make the decision.
If the donor wants to review their Will, our Wills team can help them understand their options and make sure their wishes are properly recorded.
What Happens If the Donor Can No Longer Change Their Will?
If somebody no longer has the mental capacity required to make or change a Will, the attorney cannot simply do it for them.
Instead, it may be possible to apply to the Court of Protection for a statutory Will.
This can become relevant where, for example:
- the person does not currently have a Will
- their existing Will may no longer reflect their circumstances
- family circumstances have changed
- their financial position has changed significantly
- there is concern that their current Will may no longer produce an appropriate outcome
The Court will look carefully at the person’s circumstances before deciding whether a statutory Will is appropriate.
What Is a Statutory Will?
A statutory Will is a Will authorised by the Court of Protection for somebody who is unable to make or change one themselves.
It is not simply a case of an attorney preparing a new Will and signing it on the donor’s behalf.
An application has to be made to the Court, and information will usually need to be provided about the person’s circumstances, wishes, relationships and capacity.
The Court will consider what is in that person’s best interests before deciding whether the proposed Will should be approved.
Our Court of Protection team can advise where someone may no longer have capacity and a statutory Will or wider decision about their affairs needs to be considered.
Does Losing Mental Capacity Mean Someone Cannot Make a Will?
Not always, mental capacity is considered in relation to the particular decision someone is making.
A person may need help with certain aspects of their finances but still be able to understand what making or changing a Will involves.
For that reason, the fact that an attorney is already helping manage someone’s financial affairs does not automatically mean they are unable to make a Will.
Where there is any uncertainty, it can be helpful to get legal advice before making changes. This can provide reassurance for everyone involved and reduce the risk of disagreements later.
Can an Attorney Give Away Money Instead?
There are also important limits on the gifts an attorney can make using the donor’s money.
Being appointed as an attorney does not allow someone to give away assets simply to alter who might eventually benefit from the donor’s estate.
Some reasonable gifts may be allowed in limited circumstances, for example for birthdays, weddings or charitable donations that reflect the donor’s usual pattern of giving.
Larger or less usual gifts may need approval from the Court of Protection.
This is particularly important where the proposed gift could benefit the attorney themselves or significantly reduce the value of the donor’s estate.
If you are unsure whether a proposed gift falls within your authority, it is sensible to seek advice before going ahead.
Can an Attorney Sell Something That Is Included in the Will?
Sometimes an attorney may need to sell an asset that is also mentioned in the donor’s Will.
For example, a property may need to be sold to help meet the cost of the donor’s care.
Where the attorney has the necessary authority and the decision is in the donor’s best interests, this may be entirely appropriate.
It is not the same as changing the Will. However, selling an asset can have an effect on what will eventually form part of the donor’s estate.
Because of this, significant financial decisions should be approached carefully, particularly where a particular property or asset has an important place in the donor’s estate planning.
Does a Power of Attorney Continue After Death?
No, a Lasting Power of Attorney comes to an end when the donor dies.
From that point, the attorney no longer has authority to manage the donor’s affairs under the LPA.
Responsibility for dealing with the estate then passes to the executors named in the Will or, where there is no valid Will, the appropriate administrators.
This is why an LPA and a Will are best seen as two separate parts of future planning.
An LPA helps with decisions during your lifetime, while a Will sets out what should happen to your estate after your death.
Should I Have Both a Will and a Lasting Power of Attorney?
For many people, it can make sense to consider both.
A Will allows you to decide what should happen to your estate after you die.
A Lasting Power of Attorney allows you to choose who you would trust to help with important decisions during your lifetime if you ever need that support.
One does not replace the other.
At John Fowlers, we can help you look at both together so your arrangements reflect what you want to happen now and in the future.
How Can John Fowlers Help?
Questions involving Wills, Powers of Attorney and mental capacity can sometimes feel complicated, particularly where circumstances have changed unexpectedly.
At John Fowlers, we can help you understand what an attorney is allowed to do, whether the donor may still be able to make or update their own Will, and what options may be available where they no longer have capacity.
If you are an attorney and are unsure about the limits of your authority, or you are concerned about somebody’s existing Will, contact the John Fowlers team and we can talk through the situation with you.