Does an LPA override a will?

Asking ‘does an LPA override a will’, represents something of a ‘category error’, by which I mean that the two documents are not designed to be active at the same time, so would not usually conflict (at least directly).

 

  • The LPA is used in life and a will is used in death.
  • Notwithstanding, attorneys have far reaching powers and may impact gifts by a will.
  • A Living Will is a separate document to a will, which should be integrated with an LPA.

 

An LPA (Lasting Power of Attorney) is a power of attorney given by an individual (known as a ‘donor’), to those they trust (known as ‘attorneys’), so that the latter may act on their behalf, in the event they cannot (or do not wish to). This may be when the donor loses mental capacity or, if the document is so drafted (and not relating to health matters), on instruction by the donor e.g. if they are overseas.

A will is a document which directs a person’s assets on death (this is different to a ‘living will, which applies in life and may interact with an LPA’). The person making a will is known as a ‘testator/testatrix’ and those acting for them an ‘executor/executrix’.

The two documents are wholly different in ambit, one’s dealing with affairs in life and one in death. As such their use should not overlap. For the avoidance of doubt, an attorney appointed by an LPA, whilst having ranging powers to ‘step into the shoes’ of the donor, is not permitted to make alterations to their will. Notwithstanding, the actions of an attorney may have far reaching consequences for the effect of a will.

Unless otherwise stipulated, an attorney appointed under and LPA may access the donor’s will. The attorney may be charged with managing financial and welfare matters for the donor. This will almost certainly entail paying for goods and services. Furthermore, it’s worth noting here, that LPAs are most usually in effect during late life, a period which might prove the most expensive with respect to a person’s care.

With the above in mind, the attorney is likely in a position to determine the amount spent on care, and from which of the donor’s resources these costs are funded. In the context of decisions around residential care, which can run to over £100,000/year, these decisions might radically affect the overall size of gifts made by the donor’s will. Moreover, where a will makes, for example, specific gifts, or gifts of property e.g. “I leave the contents of bank account 12345676, to John Smith”, the actions of an attorney in applying resources to which these gifts relate, might disproportionately affect certain beneficiaries of a will.

In advising clients on the creation of LPAs I am careful to emphasise the fact that attorneys have far reaching powers and act in a manner that is largely unpoliced. These documents mat be infinitely preferable to the pursuit of deputyships through the courts, however, it is crucial that the attorneys are trusted to act with absolute integrity by the donor.

As a point of clarification, it is worth mentioning the ‘Living Will’ or ‘Advance Decision’. This is a document that is quite different from the will itself, giving as it does instruction on how the maker is to be treated (medically) in certain situations (e.g. persistent unconsciousness). These documents necessarily override LPAs, and care should be taken to properly account for them at drafting stage.

LPAs are extremely important documents; they take a long time to complete and errors/rejections are common. The vast majority of those making them appoint professionals to do so. If you would like to discuss creating LPAs, please visit Confidence Wills at – www.confidencewills.co.uk