A will is a cornerstone of estate planning, allowing individuals to determine how their assets will be distributed upon their death. It provides clarity, reduces the likelihood of disputes, and ensures loved ones are cared for as intended. However, situations involving a Power of Attorney (PoA) often raise questions about its limits, especially concerning its interaction with a will. One of the most common queries is: Can someone with Power of Attorney change a will in the UK?
The short answer is no—a Power of Attorney does not give the attorney authority to change a will directly. However, there are exceptions under specific legal circumstances that allow changes to be made through a process involving statutory wills. In this article, we’ll explore what a Power of Attorney is, its limitations regarding wills, and the legal process for changing a will if the donor has lost capacity.
Understanding Power of Attorney in the UK
A Power of Attorney is a legal document that grants an individual (the attorney) the authority to make decisions on behalf of another person (the donor). This arrangement is typically used when the donor cannot manage their own affairs, either temporarily or permanently, due to illness, injury, or other reasons.
There are two main types of Power of Attorney in the UK:
- Ordinary Power of Attorney
This is a temporary arrangement where the donor remains mentally capable but needs someone to manage their financial affairs due to circumstances like travel or short-term illness. It is automatically revoked if the donor loses mental capacity. - Lasting Power of Attorney (LPA)
An LPA is a more enduring document that remains valid even if the donor loses mental capacity. There are two types of LPAs:- Property and Financial Affairs LPA: Covers financial matters such as managing bank accounts, paying bills, or selling property.
- Health and Welfare LPA: Covers decisions about medical treatment, care, and living arrangements.
The scope of an attorney’s powers under an LPA is defined by the document itself and UK law. While attorneys have significant authority to act in the donor’s best interests, they are strictly bound by the limits of their role.
Can a Power of Attorney Change a Will?
In the UK, an attorney cannot directly change a will under any circumstances. This is because a will represents the personal and testamentary wishes of the donor, and only the donor can make changes to their will while they have the mental capacity to do so.
If the donor loses mental capacity, any existing will remains valid as it was created when the donor was deemed capable. However, attorneys can take actions indirectly related to the will, such as ensuring that their financial decisions align with the donor’s wishes as stated in the will.
Exceptions: The Role of Statutory Wills
While attorneys cannot amend an existing will, they can apply to the Court of Protection for a statutory will if the donor no longer has testamentary capacity. A statutory will is a new will drafted under the supervision and approval of the Court of Protection. This type of will is intended to reflect what the donor would likely have wanted, based on evidence of their wishes, family circumstances, and best interests.
The Legal Process for Changing a Will via Statutory Will
If a statutory will is necessary, the process involves the following steps:
- Application to the Court of Protection: The attorney, or another interested party, must apply to the Court of Protection for permission to create or amend the donor’s will.
- Evidence Submission: The court requires substantial evidence to assess the donor’s circumstances and decide whether a statutory will is appropriate. This includes:
- The donor’s existing will, if one exists.
- Medical evidence confirming the donor’s lack of testamentary capacity.
- Details about the donor’s financial situation, assets, and liabilities.
- Information about the donor’s family and dependents.
- A draft of the proposed statutory will.
- Court Review: The Court of Protection examines the evidence and determines whether the proposed statutory will aligns with the donor’s presumed wishes and best interests.
- Court Approval: If the court is satisfied, it ratifies the statutory will, which then replaces the donor’s existing will.
What Is Testamentary Capacity?
A critical concept in this discussion is testamentary capacity, which refers to the legal ability to make or change a will. According to UK law, a person must demonstrate the following to have testamentary capacity:
- Understanding the Nature of a Will
The individual must comprehend that a will is a legal document that dictates how their assets will be distributed after their death. - Awareness of Their Estate
They must have a reasonable understanding of the extent of their property, assets, and liabilities. - Recognition of Beneficiaries
They must know who might have a claim on their estate and consider these claims when making decisions. - Freedom from Delusion
They must not be under any delusion that affects their decisions regarding the distribution of their assets.
If a person no longer meets these criteria, they are deemed to lack testamentary capacity, and changes to their will can only be made through the statutory will process.
Why Might a Statutory Will Be Necessary?
Statutory wills are not common, but they may be required in scenarios such as:
- Outdated Wills: The donor’s existing will no longer reflects their current circumstances, such as changes in their family structure (e.g., the birth of grandchildren) or significant changes in the value of their estate.
- Intestacy: The donor does not have a will, and the intestacy rules (default inheritance laws) would result in an outcome that does not align with what the donor would likely have wanted.
- Disputes Among Beneficiaries: Family disputes or concerns about fairness may prompt a statutory will application to better distribute the donor’s assets.
Attorney Responsibilities Regarding a Will
Even though attorneys cannot change a will directly, they have responsibilities that indirectly affect how the donor’s estate is handled:
- Acting in the Donor’s Best Interests: Attorneys must always act in the donor’s best interests, taking into account their known wishes, including those expressed in their will.
- Reviewing the Will: Attorneys may request a copy of the donor’s will to ensure their financial decisions align with its terms. For example, if the will specifies that a particular property should go to a certain beneficiary, the attorney should avoid selling that property unless absolutely necessary.
- Seeking Legal Advice: Attorneys are encouraged to consult solicitors when faced with complex situations involving the donor’s estate to ensure they are fulfilling their duties appropriately.
How to Protect Your Wishes
To minimise complications, it’s essential to take proactive steps while you have mental capacity:
- Create or Update Your Will
Draft a clear and comprehensive will with the help of a solicitor. Update it periodically to reflect changes in your circumstances. - Appoint a Trusted Attorney
Choose someone you trust implicitly to act in your best interests as your attorney. Consider including specific instructions in your LPA to guide their actions. - Communicate Your Wishes
Discuss your preferences with your attorney and loved ones to ensure everyone understands your intentions. - Plan for Future Capacity Loss
Work with a solicitor to explore options like future-proofing your will, which can include provisions for changes in your family structure or estate value.
Conclusion
While someone with Power of Attorney cannot directly change a will in the UK, they play a vital role in managing the donor’s affairs and ensuring their wishes are respected. In cases where the donor lacks testamentary capacity, statutory wills provide a legal mechanism for making necessary changes. This process is supervised by the Court of Protection to ensure fairness and alignment with the donor’s presumed intentions.
To avoid uncertainties and disputes, it’s crucial to create a will, appoint a trusted attorney, and regularly review your estate plan. If you’re navigating the complexities of wills and Power of Attorney, consult a qualified solicitor to guide you through the process and safeguard your wishes.
