As an attorney, do I have access to an incapacitated person’s Will?

You have been appointed as an attorney for property and affairs via a Lasting Power of Attorney (LPA). You have a duty, as far as reasonably possible, not to interfere with the donor’s succession plans if they have made a Will.

It is important to know the contents of the Will because it may help you to act in the donor’s best interests and also safeguard particular assets that the donor intends to leave upon death. If an attorney does not know the donor’s intentions, the attorney may dispose of assets that have been left in the Will causing a loss to a beneficiary.

If a donor consented to disclose their Will, then the attorney can have access to this. The donor may have given specific instructions to disclose in his LPA or when the Will was prepared. However, a problem arises when express prior consent has not been given or when the donor is now incapacitated.

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.

An attorney should write to the professional who prepared the Will asking to see a copy. The professional will contact the donor for their consent. If the donor agrees to disclose, then the professional can send a copy of the Will to the attorney. If the donor refuses, then the professional will not be able to send the Will.

When an attorney requests to see the Will, a professional has a duty to consider whether there is any reason to believe that the attorney has acted, is acting or proposed to act in breach of their duties to the donor under the Mental Capacity Act. If there is any suspicion, the attorney will receive a refusal to disclose the Will and the professional will raise their concerns with the Office of the Public Guardian (OPG), the body that regulates attorneys and deputies in England and Wales.

What happens if the donor is incapacitated?

The above process only works if the donor has capacity to decide whether or not they want to disclose 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.

Please contact a member of the Private Client team should you wish to discuss any of the issues raised.