Disclosing an incapacitated client’s will

How should you respond if you’re asked for a copy of a client’s will? The Law Society has recently issued updated guidance on Access and disclosure of an incapacitated person’s will – just weeks after the SRA published similar guidance.

These developments provide opportunity for a useful reminder to private client practitioners of the correct approach to take when a copy of a client’s will is requested by an attorney or deputy, where the individual concerned has lost their mental capacity.

What’s the issue?

In a nutshell, you may have a client for whom you previously made a will but who has now lost their mental capacity. Their property and financial affairs are therefore now being conducted by an attorney under a Lasting Power of Attorney or by a deputy appointed by the Court of Protection. The will forms part of the individual’s financial affairs – and it is their property.

Under section 1(6) of the Mental Capacity Act 2005 attorneys and deputies must, before making any decisions or taking a particular course of action on the individual’s behalf, have regard to whether the required purpose could be effectively achieved in a way that’s less restrictive of the person’s rights and freedom of action.

Freedom of action includes testamentary freedom – the freedom to make a will in the terms the individual wishes (subject to the usual provisos). So if the client has a will, its terms should be considered by the attorney or deputy, so you could be asked for a copy of the will at some stage.

Who’s the client?

Identifying who is your client is one of the keys to understanding your professional obligations. Under paragraph 3.1 of the SRA code for solicitors, you can take instructions from someone else if that person has authority to do so on the client’s behalf. This means your client remains your client under a power of attorney but he or she acts through their attorney; and in the case of court-appointed deputy, the client acts through the deputy as their statutory agent.

Once this is understood, it can be seen that the solicitor’s duty is to the donor client and may disclose the will on request. This will enable them to act in the client’s best interests.

Attorneys and deputies

Attorneys under an LPA, and deputies appointed by the court, owe a duty to consider the donor’s succession plans when they are making financial decisions on their behalf. This means it may be necessary to see the terms of any will and codicil to enable the attorney/deputy to make the best decision for the individual – without interfering with their wishes as set out in the will terms.

Without sight of the will, financial decisions could be made that cause significant problems, for example, an intended beneficiary under the will terms could be left with little or nothing on the client’s death. The risk is an expensive claim against the estate and or a claim against the deputy or attorney for breach of statutory and fiduciary duties.

Attorneys and deputies also have a duty to involve the individual where practical and, at the least, let them know they are requesting a copy of their will (telling them that this is to help them make a decision that is in their best interests).

As the SRA’s guidance on this states, seeing the will means they can then:

  • Take appropriate professional advice and act on it;
  • Make appropriate investments;
  • Apply for a court 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 it reflects the intentions of the person who lacks mental capacity and the relevant circumstances; and
  • Arrange for safekeeping and storage of assets.

To disclose or not?

As the solicitor who drafted the will, whether or not you must disclose the will depends on the circumstances. If the client did not say at the time the will was made that it was not to be disclosed, then a copy should be given to the deputy or attorney on request.

However, if the client made clear the will was not to be disclosed before their death then it should not be disclosed without proper authority. Usually, a court order will be required before you can disclose a copy of the will – reflecting the fact that your professional duty of care is to the client and not the deputy or attorney.

Even then, consider whether it is in your client’s best interests to disclose it. If you take the view that it’s not, notwithstanding the court order, you should apply to the Court of Protection for the order to be varied.

Wider due diligence should also be exercised. For example, if an attorney asks for a copy of the will, don’t assume they have the authority to do so. As the Law Society points out, registration of an LPA does not mean the client has lost mental capacity (unlike an Enduring Power of Attorney). This means you should check the power itself to see if it includes a restriction preventing the attorney from acting until the client lacks mental capacity to manage their property and financial affairs.

Ask the attorney for evidence demonstrating they have authority to act now under the power, such as medical evidence stating that the client lacks mental capacity to consent to the will’s disclosure.

Concerns about requests

In some circumstances, you may be concerned – with good reason – where a request for a will is made. There could be suspicions that there are ulterior motives, for example, an attorney is seeking to undermine and influence the client’s stated wishes; you may be concerned about missing assets or unpaid care home fees; or you are aware of moves to remove authority from a deputy or attorney.

If you do have credible concerns, the Society’s guidance advises you to inform the Office of the Public Guardian.

The guidance includes useful case studies, as well as template letters, practical points solicitors should note – and a helpful flowchart of necessary steps.



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