Can an Enduring Power of Attorney Change a Will?

 

An Enduring Power of Attorney does not change a Will.

An Enduring Power of Attorney covers your financial matters while you are alive, whereas a Will addresses your assets, liabilities, and how the remainder of your estate will be distributed to beneficiaries after your passing.

 

What is an Enduring Power of Attorney & How Does it Work?

 

An Enduring Power of Attorney is a legal document granting authority to someone (referred to as an “attorney”) to act on your behalf while you are alive, particularly if you become incapacitated.

For example, if you’ve set up an Enduring Power of Attorney and specified that it becomes active only when you lose legal capacity, your attorney can act for you if you are, for instance, in a coma, suffering dementia, or otherwise unable to make important decisions.

In such a scenario, your attorney can present the Enduring Power of Attorney to your bank to access your accounts, allowing the attorney to make withdrawals to cover medical expenses on your behalf.

Examples of actions your attorney can take on your behalf if you are incapacitated include:

  • managing bank accounts,
  • paying bills,
  • selling property,
  • making investments, and
  • signing legal documents.

The attorney’s authority under the Enduring Power of Attorney ceases once you pass away.

It’s advisable to appoint more than one attorney, one as the primary and another as a substitute in case the primary attorney cannot act.

Alternatively, you can appoint two or more people as joint attorneys, meaning they must make decisions together, or as joint and several attorneys, which allows any one of them to act independently of the other.

 

How a Will Differs from an Enduring Power of Attorney

 

A Will is very different from an Enduring Power of Attorney.

A Will sets out, amongst other things, the distribution of your assets to your beneficiaries after your death.

Assets held jointly with others generally pass automatically to the surviving owner.

Provided your Will is legally binding, the executor(s) named in it can apply for a Grant of Probate upon your passing.

Once Probate is granted, the executor(s) can administer and distribute your estate according to the instructions in your Will.

 

What About a General Power of Attorney?

 

Unlike an Enduring Power of Attorney, a General (non-enduring) Power of Attorney does not continue to operate if you lose legal capacity.

A General Power of Attorney can only be used while you retain capacity and becomes ineffective if you are incapacitated.

In either case, neither a General nor an Enduring Power of Attorney can change your Will.

 

Contact Us

 

For more information, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.

You can also read more about our estate planning services here.

Related Blog – When & Why Update Your Will & Estate Planning

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