A Lasting Power of Attorney and a Will are two completely different documents that do two different things.

However, they are both important and ideally a person would have both in place.

A Lasting Power of Attorney deals with the health, welfare and finances of a person whilst they are still alive, but unable to make decisions for themselves.

A Will sets out instructions for what that person wants to happen to their property, money and possessions after their death.

Both of these documents need to be made whilst the person is of sound mind and has full mental capacity. 

If you feel like you have reasonable grounds for changing a Will. Then it is advised to contact the original Will Writer as soon as possible.

Decisions a person with Lasting Power of Attorney can help you with.

When a person has Power of Attorney they then have the authority to make decisions on behalf of the Donor regarding their health and welfare.

For example, it allows them to

  • Decide where the Donor shall live. 
  • What kind of medical care they receive. 
  • Make decisions regarding their daily activities. Such as eating, dressing and social outings. 
  • Plan their end of life care. 

A finance a properly LPA also allows them to – 

  • Pay the Donor’s bill including their mortgage.
  • Handle their bank accounts. 
  • Buy and sell property.
  • Invest their money. 

Decisions a person with Lasting Power of Attorney cannot make.

Although an LPA allows the attorney to make some big decisions, one thing it does not allow for is the Donor’s Will to be changed.

At the time of creating their Will, the Donor would have been shown to be of sound mind. Meaning that they made the decisions themselves and understood all of the consequences. 

However, the world isn’t always black and white and sometimes people do change their minds. Or their circumstances and family dynamics may shift.

If an attorney strongly believes that the Donor would have made changes to their Will if they still had the mental capacity to do so. Then they are able to apply for a statutory Will from the Court of Protection

What is a statutory will? 

A statutory Will is used when someone wants to make changes to an existing Will, or create a Will for someone who is unable to do so themselves.

An application can be made when someone is not able to understand:

  • What making or changing a Will means. 
  • How much money or property they own. 
  • How making or changing a Will affects the people that are mentioned or excluded from the Will. 

When deciding to go through this process it is important to keep in mind. Not only what would the person want if they were able to create their own Will, but also their beliefs. Including how they have acted in the past and past decisions they have made themselves. 

How do I apply for a statutory Will? 

There are forms available online. These would need to be downloaded and completed. There is an application form and also a witness statement.

Along with these forms. An ‘Assessment for capacity form” will also need to be completed and the relevant parts signed by a medical professional. 

Once completed, these forms need to be returned to the Court of Protection along with the following evidence. 

  • A copy of the current Will. 
  • A copy of the proposed new Will. 
  • Details of the executors – These are the people that will deal with the Will after the death. 
  • A copy of the registered lasting power of attorney. 
  • A copy of the family tree. 
  • Reasons why the Donor may be expected to look after the beneficiaries. 
  • The name and address of the Donor. 

You will also need to provide – 

  • Details of the estate and assets. 
  • Incomings and outgoings of the Donor. 
  • Details of the inheritance tax payable after the death of the Donor. 

You will be informed by the Court of Protection once your application has been received.

You may then be asked to attend a hearing should they request one.

Once they have made their decision. If you are successful in your request. You will be asked to sign two copies of the Will, which must be witnessed. These will then be sent back to the Court of Protection to be sealed. 

If you are unsuccessful you will have 21 days in which to appeal by completing an “Appellant’s Notice for COP 35”

How much does a statutory Will cost? 

  • The application itself will cost £365 and this needs to be paid at the time of making your application. 
  • Should you need to attend a hearing, the charge for this a further £485. You will be informed when this needs to be paid. 
  • Should you choose to appeal your decision, when sending your “Appellant’s Notice for COP35″ you will need to pay a further £320. 
  • You should also take in account any Solicitors fees. 

Changing a Will on behalf of someone else is not an easy process. As frustrating as this may be, it is to ensure that not only are the best interests of the Donor kept at the forefront, but also that their wishes are met as much as possible.

If you feel like you have reasonable grounds for changing a Will. Then it is advised to contact your Solicitor as soon as possible. 

Mickey Evans