Since 1st March 2017, it has been accepted that a donor’s will can be disclosed to the attorneys of their Property and Affairs Lasting Power of Attorney (LPA). Before this date, it was believed that the will could only be disclosed if the LPA gave express authorisation for this. This week’s article will cover how a will can be disclosed to attorneys, what options the donor has and why it can be useful to allow for the disclosure of the donor’s will.
Can the will be disclosed whilst the donor has capacity?
Whilst the donor still has mental capacity, they can choose whether they wish for their will to be disclosed. As such, a will should not be disclosed to an attorney whilst the donor has capacity without the consent of the donor.
What happens after the donor’s death?
LPAs cease automatically on the death of the donor. The will therefore cannot be disclosed to the attorneys after the donor’s death. The holders of the will instead owe a duty of confidentiality to personal representatives.
Should there be an instruction in the LPA?
Whilst the attorneys will have this power as standard, a written instruction may be included in the LPA where:
- The donor wishes it to be clear that they have the power, as the attorneys may not themselves be aware.
- The donor wishes to refuse consent to disclose the contents of the will to the attorneys.
- The donor only wishes to permit disclosure in certain circumstances.
Instead of including specific provisions in the LPA itself, the donor could instead leave instructions in writing to the person or body holding the will on how the will could be disclosed to the attorneys.
Why should the attorneys know the contents of the will?
The Court of Protection has made it clear that property and financial affairs attorneys owe a duty to the donor when making financial decisions to, so far as is reasonably possible, not to interfere with the donor’s succession plans. This is compatible with S1(6) MCA 2005 which requires attorneys to consider, before acting, whether the purpose of a proposed action can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Knowing the contents of a will can help attorneys fulfil their duties such as by taking investment advice and ensuring certain assets are insured or safeguarded.
This is particularly relevant if the will contains specific gifts, for example of a property or specific bank account. Without knowledge of the terms of the will, the attorneys may sell this property or close the bank account and cause the gift in the will to fail. There are no statutory provisions to ensure that the beneficiary of an failed gift instead benefits from a cash sum due to the attorney selling the asset. Deputyships however do allow for this due to the provisions of Paragraph 8 of Schedule 2 Mental Capacity Act 2005
Can the attorneys amend the will?
Attorneys do not have the authority to amend the donor’s will or make a new will for the donor. It is not possible to give them this authority.