Property and affairs deputies and attorneys have a duty to ensure that they consider a client’s succession plans as far as possible when making financial decisions on behalf of an individual who has lost mental capacity.
By having knowledge of the content of the Will they can ensure that before making certain decisions about an individual’s finances they are not interfering with their succession plans and are therefore making decisions in the best interest of that individual.
In March 2017 the Law Society issued guidance to clarify when a solicitor holding a clients Will can disclose a copy to an attorney or property and affairs deputy. The guidance can be found here.
The guidance clarifies that a Will is a client’s property and forms part of an individual’s financial affairs. As such, if there are no instructions made by the donor/protected party (P) or the Court which prevent disclosure, a copy of a Will can be disclosed to an attorney or deputy.
Where possible the donor/P should be notified by the attorney or deputy personally of any request for disclosure.
Where a request is made by an attorney, the guidelines state that it would also be good practice for the disclosing solicitor to write to the donor and seek their consent before disclosing a copy of the Will. If the solicitor receives no response or objections and they have no cause for concern, the Will should be disclosed to the attorney.
Where a deputy is acting, their powers are wide and the order of appointment order in itself enables the deputy to see a copy of the Will. The guidance sets out that it is a decision for the deputy to make as to whether P has sufficient capacity to authorise disclosure or whether the deputy can rely on their powers inferred by the existence of the court order. In such circumstances it would be good practice for the disclosing solicitor to ask the deputy to confirm that P has either consented to disclosure or the deputy has satisfied themselves that P lacks capacity to consent.
However, if the client has specifically given instructions to their solicitor for their Will not to be disclosed prior to their death, it should not be disclosed without their consent or without an Order from the Court of Protection.
Equally, if an LPA specifically restricts an attorney from acting until the donor lacks capacity, a Will should not be disclosed by a solicitor until they have satisfied themselves that the donor does indeed lack capacity.
If a solicitor has information which gives reasonable cause for concern about disclosing a Will to a deputy or attorney and/or they do not believe it is in the client’s best interest to do so, a refusal notice should be issued and any concerns should be reported to the Office of Public Guardian.