Can an Attorney change the Donor’s Will with a Lasting Power of Attorney?
A question that we’re frequently asked by Attorneys is “can I change the Donor’s Will using a Lasting Power of Attorney?”
It’s a straightforward “no” in response. An Attorney, be it a Property and Financial Affairs, or a Health and Welfare Attorney does not, and cannot have the authority to change or make a new Will for the Donor.
Can an Attorney see the Donor’s Will before they pass away?
Prior to March 2017, the Donor’s Will could only be disclosed if the Lasting Power of Attorney gave express permission for the Will to be disclosed. However, since the 1st March 2017, then a Donor’s Will can, under certain circumstances, be disclosed to a Property and Financial Affairs Attorney.
There are situations where it could be beneficial for a Property and Financial Affairs Attorney to be privy to the contents of the Donor’s Will.
Leaving instructions in the LPA
By default, an Attorney will have the authorisation to view the Will of the Donor. A Donor can choose to specify instructions in the LPA where they wish it to be clear that an Attorney has permission to view their Will.
The Donor can also add in instructions to refuse consent for the Will to be disclosed to the Attorney, or the Will can only be disclosed in certain circumstances.
How can the Attorneys knowing the content of the Will help manage a Donor’s estate?
Under a Lasting Power of Attorney, a Property and Financial Affairs Attorney must act in the Donor's best interests. The Attorneys must make all reasonable attempts to not interfere with the Donor’s succession plans.
The Donor may have recorded specific gift requests in their Will, for example, a property or a specific bank account. If an Attorney didn’t have knowledge of the Donor’s Will, then they may dispose of this asset either by closing a bank account or selling the property. In disposing of such assets, the Attorney would not be acting in the Donor’s best interests.
If the Donor still has mental capacity, can the Will be disclosed?
Whilst the Donor still has mental capacity, they can decide for themselves whether their Attorneys can view their Will. Only when a Donor has lost mental capacity can the Will be disclosed, so long as there are no restrictions noted in the LPA.
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