Is Power of Attorney included in your will?
The short answer is no.
Power of Attorney is not included as part of your will.
It might seem reasonable that your will’s main beneficiary, such as your partner, would automatically become your attorney if something happened to you. But without that explicit instruction, how could anyone be sure? How could it be proven if challenged in a court of law?
In the eyes of the law, a will and a Power of Attorney are separate legal documents.
Check out ‘Your complete guide to Power of Attorney’
Power of Attorney vs. writing a will
A will is a legal document that says, “When I pass away, I want that to go to this person.”
A Power of Attorney document says, “If I lose my mental capacity, I want this person to help me make decisions about Y.”
Unlike a will, Power of Attorney is really a type of insurance policy. You hope you will not need it, but it is there in case something happens.
If you are in an accident, diagnosed with a medical condition, or even just leaving the country for a short time, the document helps you stay in control by letting you make decisions with the support of someone you trust.
Depending on the type of Lasting Power of Attorney (LPA) you get, your representatives can help you look after your money, medical care, and your home.
If you are thinking about updating or writing a will, it is often quicker and cheaper to have your solicitor draft a Power of Attorney document at the same time.
Laws around Power of Attorney and wills
Your chosen attorney cannot change your will. They also cannot make a new will to replace your old one without a court order.
Once you pass away, Power of Attorney ends, so your attorney has no control over how your estate is distributed unless they are also acting as an executor of the will. Even then, they must follow your final wishes unless all beneficiaries agree to make a change using a deed of variation.
Find out ‘What your attorney can and can’t do’
If you do not have a will, the person acting on your behalf can apply to the Court of Protection for a statutory will. However, it is best to speak to a solicitor first, as someone considered unable to manage their own money may still be able to make a will.
It is usually better to have a statutory will in place rather than pass away without a will, known as dying intestate. Without a will, the courts decide who benefits from your assets, and your gifts may not go to the people you want.
For this reason, it is always best to set out clear instructions in both your LPA and your will. Power of Attorney helps you stay in control, even when you can no longer make decisions for yourself.
See ‘How to maintain your control with Power of Attorney’
Speak to a solicitor, as they can guide you through the Power of Attorney process and help make sure everything is done correctly the first time.
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