Access to an Incapacitated Person’s Will

If you are appointed as an Attorney for Property and Financial Affairs via a Lasting Power of Attorney (LPA), then you will know that this role brings with it duties and responsibilities which are owed to the person who lacks capacity.

One duty that you should be aware of is that, so far as possible, you should not interfere with the Donor’s succession plans if they have made a Will. Without sight of the Will an Attorney may not know the donor’s true intentions and may dispose of assets that have been left in the Will causing a loss to a beneficiary.

Having knowledge of the contents of the Will and/or Codicils(s), means that the Attorney is in a position to act in the best interest of the person for whom they act. It can also allow the Attorney to safeguard particular assets that the donor intended to leave upon death.

Example:

Under the terms of Claire’s Will she left her house (worth £300,000) to her daughters Violet and Hayley, with the residuary of her estate (approximately £50,000) to her favourite animal charity, the Dogs Trust. She loses the ability to manage her affairs and her sister Sue begins acting for her under a Lasting Power of Attorney.

Claire needs residential care and not knowing the contents of her Will, Sue decides to sell Claire’s house to pay for care fees. The effect of selling the house is that the gift to Violet and Hayley fails and they get nothing. The charity therefore benefits from the whole of the estate, which is presumably not what Claire would have wanted.

Had Sue known the contents of the Will, she could have applied to the Court of Protection for either a statutory will to be made so that Claire’s wishes were followed, or obtained an order for sale which, under the Mental Capacity Act 2005, ensures the preservation of an interest in property which is disposed of on behalf of a person who lacks mental capacity under a Court Order, where that interest in property is the subject of a gift under the person’s will.

What can an Attorney do?

As an Attorney, you do not automatically have the right to access the donor’s Will if there is no prior consent. If the Will was prepared by a solicitor, there will be a duty of confidentiality owed to the Donor not to disclose the Will without consent. This continues even after the Donor has died.

If an Attorney requires sight of the Donor’s Will they should request a copy in writing to the professional who prepared the Will. Upon receipt of such letter the professional will contact the Donor for their consent. Only if the Donor agrees to disclose, will the professional provide a copy to the Attorney.

What happens if the Donor is incapacitated?

If the Donor has lost mental capacity then consent cannot be obtained from them. An Attorney should provide sufficient evidence to confirm that the donor now lacks capacity to consent to the disclosure of their Will.

When the Donor is already incapacitated, the Attorney can apply to the Court of Protection about these points:-

  • Disclosure of the Will. The Court of Protection can give consent on the Donor’s behalf.
  • Approval or directions about a particular transaction, especially if the asset is subject to a specific legacy in the Donor’s Will.
  • Execution of a Statutory Will to reflect the Donor’s current financial situation.

Instructions at the time of making a Will and a Lasting Power of Attorney

It is advisable for the issue of disclosing your Will to be discussed when making a Will and a Lasting Power of Attorney. Having discussed the consequences the person making the documents should provide instructions as to whether disclosure is to be denied, or the circumstances in which it is permitted.

If there are specific instructions taken that the Will and/or Codicil(s) should not be disclosed, then no copies should be provided unless ordered by the Court of Protection.

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. For example:-

  • 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.

Conclusion

It is important to note that we are only talking about obtaining a copy of the Will. The original Will remains the Donor’s property and solicitors have no obligation to provide the original to anyone but the maker of the Will or the Executors upon death, unless a Court order states otherwise.

If you are concerned that your Attorneys will not be allowed a copy of your Will or if you believe that specific bequests in your Will may fail in the future, please feel free to contact us on 01245 504904 to book an appointment.

Jenna is a Solicitor in our Private Client team. She acts for clients on matters including making Wills, preparation and registration of Lasting Powers of Attorney, Deputyship applications with the Court of Protection and Probate work.