Can Lasting Powers of Attorney Make or Change A Will
Published / Last Updated on 27/05/2023
The simple answer to the question “Can an attorney appointed in a Lasting Powers of Attorney make or change a Will?” is no. An attorney cannot just make a will on behalf of the person they are acting for, they must apply to the Court of Protection to make a “Statutory Will”.
Lack of Understanding
The person whose affairs the attorney is looking after and wishing to make or change a will, must have no understanding of what the position is or what a will is.
- Had a serious brain injury or have a cognitive illness e.g., dementia.
- Have no understanding of what making or changing a will means.
- Have no understanding of how much money or property they have.
- Have no understanding of the impact on other people when they are mentioned in a will or left out of the will.
If this is the case, the attorney can make an application to the Court of Protection (COP) for a Statutory Will.
Applying to COP for a Statutory Will
- Application form to Court of Protection with full details.
- Tell interested parties that you are making an application.
- Certification required from a GP, Doctor or Consultant the person does not have capacity.
- Usually, you will be required to attend (or by telephone) a Court of Protection Hearing.
- Then draft the will, sign and send to the Court of Protection. If approved, the Court of Protection will seal it i.e., apply the courts official round embossed seal on all pages as well as an ink seal (visible) on the front page with the date that the court had approved the will.
Costs to Plan For
- Application to Court of Protection £371.
- Cost of Court of Protection Hearing (if required) £494.
- Solicitor’s fees if the Court appoints an Official Solicitor to act as a ‘Litigation Friend’ of the incapacitated person.
- Legal Counsel fees if the attorney chooses to have counsel or a barrister act for them in court.
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