Access and disclosure of an incapacitated person's Will
Friday, 5th May 2017
It always used to be the rule that solicitors could not show the Will of an incapacitated person to their Attorney. This led to many situations where the Attorney took action in good faith that cut across the clearly expressed wishes of the Donor.
The Office of the Public Guardian ("OPG") and the Solicitors Regulation Authority ("SRA") have reviewed the previous rule and concluded that it is not in the Donor's best interest for their Attorney to be left ignorant of the terms of their Will. Therefore the following guidance should be followed.
Attorneys owe a duty, when making financial decisions under a Lasting Power of Attorney ("LPA"), not to interfere with the succession plans made by the Donor.
An attorney is better equipped to make an informed decisions in the best interests of the Donor if they are aware of the contents of the Will (and/or Codicil(s)). This is because the Will forms part of the financial affairs belonging to the Donor. To provide examples, an attorney may:
- Take and act upon appropriate and tailored professional advice
- Make appropriate investments
- Apply to the Court for an order to save a specific legacy where disposal of the asset is required
Unless the Donor specifically provides instructions to the contrary, the attorney is entitled to a copy of the Donor's Will. Solicitors will ask the Donor about this disclosure when they are making the Will and confirm their wishes at the time of making the LPA. If a Donor would like to deny disclosure or provide only for particular circumstances under which it is permitted, their wishes should be incorporated into the LPA or in a side letter.
A specific court order requiring disclosure of the Will must be complied with even if the client has expressed their wish for non-disclosure of their Will prior to their death. However, a variation of the order can be sought if the solicitor believes the disclosure is not in the client's best interests. This will need to be evidenced by a Witness Statement.
Incapacity restriction in LPA
If the LPA has a restriction which prevents the attorney from acting until the Donor lacks mental capacity, the solicitor must obtain sufficient evidence of a lack of mental capacity from the attorney. Registration of an LPA does not indicate incapacity.
This does not apply to the older Enduring Powers of Attorney, which must have been registered by the attorney when they believe the Donor has become or is becoming unable to manage their affairs. A registered EPA is sufficient evidence of the Donor's mental incapacity.
Concerns about an attorney
Where there is a reasonable belief that the attorney may act or make a decision that is not in the best interests of the Donor, the solicitor may consider that it is not appropriate for the Will to be disclosed. Examples of such concerns include the following:
- The attorney wishes to transfer the Donor's asset to his or herself
- The attorney has had an unexpected change in lifestyle
- Care fees are not being paid
- The attorney refuses to disclose the residence of the Donor
Where there are concerns, the solicitor can issue a Refusal Notice to the attorney and inform the Office of the Public Guardian of their concerns.
Notification of disclosure to the Donor
It is good practice to let the Donor know in advance of sending the Will to the attorney after it has been requested, even if the Donor lacks mental capacity.
The attorney should also personally inform the Donor that he or she has requested a copy of the Will.
If you have been appointed as a property and financial affairs attorney and would like to know whether you can obtain a copy of the Donor's Will, please contact a member of our Trusts and Estates Team.
Alternatively, if you would like to give a Lasting Power of Attorney for your property and financial affairs (and/or health and welfare decisions), please contact our Trusts and Estates Department.
If you are an existing client and you would like to add a side note to your Lasting Power of Attorney which denies disclosure of your Will to your attorney, please contact a member of the team (same link as above).