Can Power Of Attorney Change A Will?

The short answer is ‘no’, a Will cannot be changed by someone with a Lasting Power of Attorney (LPA) whether that’s for Health and Welfare or Property and Financial affairs.

What is a Lasting Power of Attorney?

An LPA is a legal document that gives someone you trust the legal power to make decisions when you’re no longer able to. That could be a friend, relative or even a professional (known as an attorney).

There are two types of Lasting Power of Attorney:

• Health and Welfare - enabling the person(s) you choose to make decisions on your behalf, including: where and who you live with, the care you receive, consenting to (or refusing) medical treatment, the right to access your personal information and more.
• Property and Financial Affairs - Allows the person(s) you choose to make decisions about buying or selling property, dealing with banks, claiming and using benefits on your behalf, managing your taxes and more. 

An LPA is usually set up when the person in question (known legally as the ‘donor’) still has mental capacity. 

However, if someone has lost capacity, the individual wishing to act on their behalf can still apply to be their Lasting Power of Attorney through the Court of Protection (though it isn’t always guaranteed that person will be granted the power as the court will decide who is suitable). 

Because an attorney could be held civilly and criminally liable if they abuse the Lasting Power of Attorney or do not act in the donor’s best interests (such as unlawfully changing a Will to benefit themselves or taking money from their bank account), it's incredibly important that the donor only gives such powers to someone entirely trustworthy.

What happens to Power of Attorney when someone dies UK?

When the donor passes away, the Power of Attorney essentially becomes invalid. This means it's important to make a Will to give instructions for after your death.

Although the Lasting Power of Attorney gives the attorney a significant amount of power, there are limitations. An LPA cannot override a Will and the attorney can only make decisions within the scope of the powers agreed upon in the LPA.

While an attorney has the power to control and dispose of the assets that appear in the Will before the donor's death (for example selling a property to pay for care), this does not mean an attorney can change the Will itself.

Who has Power of Attorney if there’s no Will?

After someone has passed away, an LPA would no longer have any effect. This means that, if there was no valid Will, you’ll need to apply to be an ‘administrator’ or ‘executor’ (unless there was a clause in the LPA that says the power will automatically be given to you).

Even with this power, the estate may still have to go to probate.

What Powers Does A Lasting Power Of Attorney Have?

While a donor can choose to grant you one or both types of LPA powers, there are still limits to how much they can do.

For instance, an attorney cannot make decisions about a task not expressly described in the LPA. A donor can also prohibit an attorney from performing certain actions, such as accessing their safe deposit box, withdrawing from their bank account or viewing their will before they’ve passed.

What is Mental Capacity?

Mental Capacity is the ability to make sound and independent decisions for yourself. Someone who ‘lacks capacity’ might be due to illness, injury, mental health issues or learning disabilities.

So, a person has mental capacity if they can do the following:

• Understand the information relevant to the decision at hand.
• Retain the information long enough to make a decision.
• Make a decision based on the information.
• Communicate the decision.

Mental capacity is decision-specific, which means each decision must be taken into account as a matter in and of itself. For example, a person may have the mental capacity to make simpler decisions such as what to wear but may lack the capacity to make big decisions relating to finance or their health.

It’s The Mental Capacity Act that allows people to use Lasting Power of Attorney to appoint someone to make decisions on their behalf. To be able to choose an attorney, you must have mental capacity.