Can My Appointed Attorney Write a Will for Me?
10 January 2020
When you make a Lasting Power of Attorney, your appointed attorney will have legal authority to make certain decisions for you. This authority does not extend to writing a Will on your behalf, so it's essential that your wishes are recorded in a legally valid Will while you still have the capacity to put one in place.
Where Do An Attorney's Powers End?
A Lasting Power of Attorney (LPA) is a legal document in which you can grant someone you trust with the legal authority to make certain decisions on your behalf.
There are two types of LPA that you can put in place, and this determines what authority your attorney will have. One type covers Health and Welfare while the other covers Property and Financial Affairs.
A Health and Welfare LPA comes into effect when you lose the capacity to make your own decisions, and grants your attorney authority to make decisions about medical treatment and your general welfare. A Property and Financial Affairs LPA will also come into effect when you lose capacity, or it can come into effect earlier than this if you choose. This gives your attorney legal authority to make decisions about your money and any assets you own in England or Wales.
Neither type of LPA gives your attorney the power to write a Will on your behalf. Only you can write your Will, and in order to do so you need to be able to have sufficient capacity to fully understand what you're doing and its implications. This means that if you wait until after your LPA has come into effect then it could be too late.
For more information, see What is Testamentary Capacity?
Once you have lost testamentary capacity, the best your attorney would be able to do is to apply to the Court of Protection for them to make a Statutory Will on your behalf. This can be a complex, time consuming and expensive process.
Statutory Wills Explained
When an application is made to the Court of Protection for a Statutory Will, comprehensive details will need to be provided to the Court. This includes details of the individual's Estate, their care arrangements, their financial circumstances and their family relationships. A draft of the proposed Will can also be included with the application.
Once the application has been received by the Court, the Official Solicitor will be appointed on behalf of the person who is unable to make their own Will. The Official Solicitor will then review the application and can make recommendations based on the information provided to help ensure that the terms of the Will are fair.
Anyone who is affected by the new Will can be involved in this process and attend the Court hearing. For example, this could be a Beneficiary who was set to inherit under a previous Will, but is omitted from the proposed Will. This can inevitably cause family tensions if your loved ones disagree on what you would want to happen to your Estate. The Court will make the final decision as to what is set out under the terms of the final Will.
Make A Will Before It's Too Late
The best way to ensure that you have a legally valid Will in place that is an accurate reflection of your wishes is to put this in place while you still have the capacity to do so. By setting out your wishes in a Will, you can ensure that your loved ones are provided for in the way that you want and remove any uncertainty when the time comes.
At Co-op Legal Services, we make Will Writing easy. You can choose from our telephone service, our home visit service or you can start your Will online. Our Wills start from as little as £150 (including VAT). This includes advice and guidance from an experienced Will Writer who will draft a bespoke Will for you that's tailored to your individual needs. Once your Will is complete, we can store this securely for the rest of your life, free of charge.