Life expectancy is rising and property prices are rocketing. As a result, many older people are looking to the future and asking: how will my assets be managed if my faculties desert me? They wish to protect themselves, and their legatees, from possible consequences of any future physical or – more significantly – mental infirmity.

With this in mind, many older people are choosing to donate enduring power of attorney (EPA) to a trusted relative, friend or professional, such as a bank manager. If this person feels that the donor has reached a point where he or she can no longer cope, he or she can apply to the Public Guardianship Office (the PGO, the administrative arm of the Court of Protection) to have the EPA registered – and thereby gain certain powers to manage the donor’s affairs.This process is not automatic: power of attorney is granted only after rigorous scrutiny and the donor has a right to object.

Even after power of attorney has been granted, the donor may still be considered capable of carrying out certain legal steps – such as making a will. It is a common misconception that registration means that the donor can no longer make a will independently, without the involvement of the attorney and the Court of Protection. But a High Court case last year shows that assumption to be mistaken.

The case involved a spinster in her nineties, living alone in her own home, who became physically infirm and mentally incapable of dealing with day-to-day business such as payment of bills, cooking and cleaning. She needed a home help, who was paid from her assets by her bank. Her attorney, family and friends suspected that the home help was attempting to secure the covert creation of a new will in her favour. Registration was sought on the mistaken assumption that this would make any such move impossible.

When the donor died the home help produced a will, signed six months earlier, making her a significant beneficiary and sole executor. No one knew of the will’s existence other than the home help, a will-writer and his wife, who served as second witness. No medical advice had been sought and no legal advice obtained other than the expertise of the will-writer. He had not inquired as to the possible existence of an EPA.

The family and other beneficiaries under an earlier will sought to have the later will set aside. This the court did on the basis of lack of testamentary capacity. The defendant had been granted legal aid and the substantial costs of both sides were paid from the estate.

A will correctly drafted, signed and witnessed, even in dubious circumstances, is a powerful instrument. Any attempt to overturn it is likely to be long, difficult, expensive and uncertain of outcome. This can be even more problematic if the beneficiary is also made executor, giving him or her initial control over the papers of the deceased, including earlier wills.

The PGO’s advice is: “If a doctor and a solicitor consider that the donor is mentally able to make a will, you do not need our permission for it to be drawn up and signed. Legal and medical advice is essential.” But this can give a false sense of security to attorneys and other interested parties.

Provided a will satisfies the minimal legal requirements it is prima facie valid – even a will kit from a stationer, signed on the kitchen table. A beneficiary or executor does not have to prove that such a will is valid; it is for a claimant to prove that it is invalid.

The case has important implications for anyone arranging domiciliary care. Consideration should be given to making it a condition of employment that the employee does not discuss legal or financial matters with the person being cared for. If possible, this could be made a term of a written contract. If there is firm evidence that the term is being breached, the contract can be terminated.

It may also be wise to arrange a periodic medical examination of the patient.

The elderly staying in their homes are served by a growing body of casual domiciliary workers, largely without training, accreditation or regulation. Old people enjoy less protection than children, although their substantial assets make them more vulnerable, if not to fraud and manipulation then to testamentary complications. It is in everyone’s interests that this is promptly addressed.

The author is involved in the welfare of the elderly

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