In this article, we uncover the difference between a will and a lasting power of attorney (LPA). If you’re planning for the future, it’s common to come across both a will and a power of attorney and to wonder how they are different from one another.
You may be curious whether the two overlap or whether one can override the other, especially when care decisions, finances, or probate are involved. In this guide, we aim to answer all your questions, so you know the difference between the two and how they may impact care decisions.
What is a will?
A will is an important document that sets out what should happen to your money, property and possessions when you pass away. It helps your loved ones understand how to split your estate and carry out your wishes. There are a number of things you might include in your will, these can include:
- Named beneficiaries – those who will inherit from you, and what they will inherit
- Appointment of executors to manage your estate and deal with things like probate
- Monetary gifts you’d like to leave
- Wishes or desires you wish to be fulfilled, particularly relating to your funeral service or possessions.
Wills will only come into effect after your death and hold no legal authority whilst you are alive. If you die without a will, your estate will be dealt with under the rules of intestacy, which may not reflect your personal wishes.
What Is a Lasting Power of Attorney?
A lasting power of attorney (LPA) is a legal document outlining who you have appointed to make decisions on your behalf should you be unable to, whilst you’re still alive. An LPA is commonly used if someone loses mental capacity due to illness, injury or conditions like dementia. There are two types of LPAs in England and Wales:
- Property and Financial Affairs – which covers matters relating to bank accounts, paying bills, property and finances.
- Health and Welfare – which covers decisions about care, medical treatments, living arrangements and day-to-day wellbeing.
An LPA must be registered with the Office of the Public Guardian to be used, and, unlike a will, it ends upon a person’s death.
Learn more: I am next of kin, why should an LPA be in place?
When does a will apply vs when does an LPA apply?
One of the biggest sources of confusion is when a will applies and when an LPA applies. Both documents are important for future planning, but they come into effect at different times.
A lasting power of attorney comes into effect during your lifetime and allows you to appoint attorneys to make decisions on your behalf should you no longer be able to.
A will comes into effect after your death and allows your named executors to process the distribution of your money, property and possessions.
Does a Power of Attorney override a will?
In short, no. A power of attorney does not override a will. A power of attorney ends as soon as you die; in that case, the will takes over.
Can a Power of Attorney change a will?
No, a power of attorney cannot change a will and has no legal authority to amend it. To change a will, the person who made it must have the mental capacity to do so themselves.
Probate and Power of Attorney – how do they work together?
Similarly to the difference between LPAs and wills, LPAs and probate come into effect at different times.
As we have mentioned, LPAs can only be used whilst a person is alive, allowing them to manage a number of factors, including finances, care decisions and day-to-day wellbeing.
Probate takes place after a person’s death. It gives the executors named in a will the authority to deal with the person’s estate, such as collecting assets, paying debts, and distributing inheritance. If there is no will, probate will be handled by administrators under the rules of intestacy.
Whilst both are similar roles, a person who has lasting power of attorney does not automatically get probate upon a person’s death. Whilst in many cases the same person/person’s are named, it is not always the case.
Why would you need a Power of Attorney?
A power of attorney is most commonly needed when someone is unable to make decisions for themselves, either temporarily or permanently. This can be because of illness, an accident or conditions that may affect mental capacity.
A power of attorney is about planning for the future. It ensures that, if you lose mental capacity, decisions are made by people of your choice, rather than being left to a legal process at a stressful time.
If you’re planning for the future, currently applying for continuing healthcare, or trying to understand the difference between a will and a Lasting Power of Attorney, we hope this guide has given you some clarity.
If you’re acting as a Lasting Power of Attorney for a loved one and need support with securing NHS Continuing Healthcare funding, Compass CHC can guide you through the process. From understanding eligibility to managing assessments and appeals, our team is here to help you navigate each step with confidence and ensure your family member receives the care they’re entitled to.
Learn more: What Is Continuing Healthcare Funding?
FAQS about Lasting Power of Attorney and wills
Does a power of attorney override a will in the UK?
No, a power of attorney does not override a will in the UK. An LPA is effective whilst the person is alive, and a will takes effect after their death.
Can someone with the power of attorney change a will?
No, someone with the power of attorney cannot change a will. Only the person who made the will can change or amend it, and only if they have full mental capacity.
Do I need probate if I had power of attorney?
Yes, probate is still required in most cases, even if you had power of attorney. This is because a power of attorney only applies when someone is alive.
Do I need a power of attorney if I’m married?
Yes, married couples still need a power of attorney if they want their spouse to have legal authority to make decisions on their behalf.
What happens if someone loses mental capacity without an LPA?
If someone loses mental capacity without an LPA, then legal changes cannot be made until authority is granted by the Court of Protection.
Unsure if you or a loved one qualifies?
If you think you or a loved one may be eligible for CHC funding, don’t delay. We’re here to guide you through every step.
Submit an enquiry to get started.
