Duty of attorneys and deputies to consider the Will

Consider the Will

When making financial decisions for a someone who has lost mental capacity as their attorney or deputy, you need to consider whether the person you are acting for has made succession plans (i.e. plans about what will happen to their assets when they die). If they have, you need to ensure that your actions and decisions do not interfere with those plans, so far as is reasonably possible (Attorney-General v The Marquis of Ailesbury (1887) App Cas 672 and Re Joan Treadwell (July 2013)). This requirement is echoed by Section 1(6) of the Mental Capacity Act 2005 which states that before you act or make a decision, you need to think about whether what you are trying to achieve could be done in a way that is less restrictive of the person’s rights and freedom of action.

To effectively carry out your duties as an attorney or deputy, you will therefore need to obtain a copy of their Will and any codicils, if you don’t have one already. You will then need to read through and understand the contents of the Will and ensure as far as possible that your actions and decisions are compatible with the contents.

Q: How does knowledge of the Will help me make better decisions?

With knowledge of the contents of the Will, you may want to:

  • Take and act upon appropriate professional advice.
  • Make appropriate investments.
  • Apply to the Court for an order to save a specific legacy (so far as possible), where disposal of the asset is required.
  • Apply to the Court for a Statutory Will to ensure that it reflects the intentions of the person who lacks mental capacity and the relevant circumstances, or
  • Arrange for safekeeping and storage of the asset.

Source: Access and disclosure of an incapacitated person’s will (1st March 2017)

Without knowledge of the contents of the Will, you could make financial decisions that frustrate the person’s wishes and plans.

Example 1:

Alice makes a Will leaving her ‘Barclays Bank shares’ to Lisa, with the residuary of her estate (worth around £110,000) to her sons Max and Andrew. The Barclays shares are worth £1,000. Alice loses the ability to manage her own financial affairs and her brother James takes over as her attorney. He notices that Barclays shares are performing well and, not knowing the contents of Alice’s Will, he invests £100,000 in further shares using Alice’s funds. As a result, Lisa will now receive the bulk of the estate while Max and Andrew will miss out on most of the inheritance that Alice wanted them to have.

Example 2:

In her Will Olivia has left her house (worth £100,000) to her daughters Ruby and Susannah, with the residuary of her estate (approximately £40,000 in shares) to her favourite animal charity, the RSPCA. She loses the ability to manage her affairs and her sister Sam begins acting for her under a Lasting Power of Attorney. Olivia needs residential care and not knowing the contents of her Will, Sam decides to sell Olivia’s house rather than the shares to pay for care fees. When Olivia dies, with the property gone Ruby and Susannah get nothing, while the RSPCA receives £40,000. This would not have been Olivia’s wish.

Had Sam known the contents of the Will, she could have sold the shares to fund Sam’s care. Alternatively she could have applied to the Court of Protection for either a statutory will to be made so that Olivia’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.

Obtaining a copy of the Will

If you are acting under a Lasting Power of Attorney or Enduring Power of Attorney that contains a restriction which says you cannot act until the person has lost mental capacity, you may be asked to provide evidence to the solicitor or lawyer holding the Will that the person has indeed lost mental capacity.

If you are acting under an Enduring Power of Attorney and there is no such restriction, a copy of the registered Enduring Power of Attorney alone will be sufficient to obtain a copy of the Will. The reason for this is that an Enduring Power of Attorney can be registered once you believe the person “has become or is becoming unable to manage his or her property and financial affairs”. No medical evidence is required to register the EPA unless this is specifically stated as a requirement. The process is safeguarded by the requirement to notify at the time of registration – see ‘Registering an Enduring Power of Attorney’ for more information.

If you are acting under a Lasting Power of Attorney and there is no such restriction, again, a copy of the Lasting Power of Attorney alone will be sufficient to obtain a copy of the Will.

If you are acting as a Deputy, the Court of Protection recognises that incapacity is not a continuing state and that the person you are acting for is not prevented from making decisions where they have the necessary capacity. It is your duty to decide which decisions the person has the capacity to make. Therefore, providing the solicitor or lawyer holding the Will with a copy of the Court order should be sufficient to obtain a copy of the Will.

In all cases, as a point of courtesy and good practice, the solicitor or lawyer holding the Will should inform the person that they intend to provide a copy of their Will to you, giving them the opportunity to object.

The solicitor or lawyer can also refuse your request if they have good reason to believe that you have acted, you are acting or you may act in future in breach of your fiduciary and/or statutory duties. In these circumstances, the solicitor or lawyer will inform you of this and also raise their concerns with the Office of the Public Guardian.

Note that if the person that you are acting for gave specific instructions to their solicitor or lawyer not to disclose their Will until after their death, you will not be able to obtain a copy without a specific court order from the Court of Protection. On receipt of this order, if the solicitor or lawyer believes it is not in the client’s best interests to disclose the Will, they can apply to the Court to vary such an order, giving reasons why the Will should not be disclosed.

Need advice?

For questions regarding Lasting Powers of Attorney, Enduring Powers of Attorney or Wills, get in touch on 0800 788 0500 or email us: support@aprilking.co.uk.

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