Can an Attorney Make a Will for Someone Else?

A lasting power of attorney allows an attorney to manage someone's property, finances, health or welfare, but it does not extend to making testamentary decisions on their behalf. The law treats a will as such a personal expression of someone's own wishes that it cannot be delegated to another person, however trusted, and however wide their authority is in other respects.

This applies whether the LPA covers property and financial affairs or health and welfare, and it applies equally to a deputy appointed by the Court of Protection to manage someone's affairs where no LPA was made in time. Neither role includes the power to make, change or revoke a will.

A will can only be made or changed by the person themselves, and only if they have testamentary capacity at the time, judged under the Banks v Goodfellow test rather than a general capacity assessment. If someone still has capacity to understand and make decisions about their will, they can do so, even if an LPA is also in place for other purposes; the two are not mutually exclusive.

Where capacity for will-making genuinely has been lost, for example due to advanced dementia, the person cannot make or change their own will, and as explained above, nobody else can do it for them informally. This is the gap that a statutory will exists to address.

A statutory will is a will made on behalf of someone who lacks testamentary capacity, authorised by the Court of Protection rather than signed by the person themselves. It is used in situations where a will genuinely needs to be made or changed, for example because the person never made one, their existing will is significantly out of date, or their circumstances have changed dramatically since it was made, such as a large inheritance or the death of a beneficiary.

The Court considers what is in the person's best interests, taking into account, so far as possible, what is known of their past wishes, feelings, beliefs and values, rather than simply what would seem fair or sensible to family members. The Official Solicitor is often involved to represent the interests of the person who lacks capacity throughout the process.

An application is made to the Court of Protection, usually by a family member, attorney, deputy or solicitor, setting out why a statutory will is needed and proposing its terms. Evidence is gathered about the person's capacity, their financial circumstances, family relationships and any known past wishes, and interested parties are usually given the chance to respond.

This process is not quick. It commonly takes several months from application to a final order, and involves court fees and legal costs, which are usually paid from the person's own estate. It is used relatively rarely, precisely because it is only appropriate where a will genuinely cannot wait or cannot otherwise be put right.

Statutory will applications are a specialist area of law involving the Court of Protection, detailed evidence about someone's best interests, and formal legal procedure. This is firmly outside what any online or DIY will service can help with, and attempting to handle it without a solicitor experienced in Court of Protection work is likely to cause delay and additional cost.

If you are an attorney or deputy and believe the person you are helping needs a will made or updated but no longer has capacity to do this themselves, speak to a solicitor with Court of Protection experience as early as possible, since the process takes time to complete.