Can my parent change her Will if I have power of attorney?

Can my parent change their Will if I have power of attorney?

Your parent can change their Will even if you have power of attorney, providing they has the mental capacity to do so. This means, your parent must understand what changing their Will means, the significance of it and how this may affect their estate and beneficiaries. As someone with power of attorney, you cannot change your parent’s Will. 

If your parent doesn’t have a Will, and doesn’t have mental capacity, then you may be able to make a Statutory Will on their behalf, but an application will need to be made to the Court of Protection.

How do you test mental capacity?

Testing mental capacity typically involves a two-step process. Firstly, it assesses if there's an impairment of the individual's mind or brain due to factors like illness or injury. Secondly, it evaluates whether this impairment leads to an inability to make decisions when necessary. This includes difficulties in understanding, retaining, or using information to make reasoned choices.

Even if someone struggles to make decisions independently, it's important to see if they can do so with support. If they can make informed choices with assistance, they are still considered to have mental capacity.

Signs of declining mental capacity include noticeable behavioural changes, difficulties in everyday decision-making, and concerns raised by healthcare professionals or caregivers.

A mental capacity assessment can provide clarity when doubts arise. While anyone in regular contact with the individual can assess capacity, in legal situations, an official test may be required, such as when selling property or making a Will. The assessment, conducted under the Mental Capacity Act 2005, aims to determine whether the individual lacks capacity to make decisions by examining their ability to understand, retain, and use information to reach decisions.

How to update a Will

Updating your Will is vital to ensure your wishes are legally documented and followed. It's recommended to review your Will every five years or after significant life changes. Instead of directly altering the original document, you can add a codicil for minor changes, or create a new Will for more significant updates.

What happens to your Will if you get married?

Marriage, remarriage, or entering a civil partnership cancels any existing Will, so it's crucial to update it in these cases. Divorce doesn't automatically void a Will, but it excludes the ex-spouse from benefiting. Therefore, it's important to create a new Will after marriage, separation, or divorce to reflect your current situation and wishes. Regularly updating your Will ensures your estate is managed as you desire, providing peace of mind for you and your loved ones.

How Can GloverPriest Help?

At GloverPriest, we provide friendly and transparent Wills, probate and LPA advice. If you would like further help on your Will, please don’t hesitate to speak to one of our expert probate lawyers today. Complete our enquiry form.