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Managing affairs for someone else

21 Aug 2017

It has long been the Court of Protection’s position that Property and Financial Affairs Attorneys and/or Deputies owe a duty when making financial decisions on behalf of a Donor, to consider the succession plans made by the person for whom they are acting. However, it is also widely accepted that a person’s Will is a private document until they die. This has historically caused a stumbling block for those acting under powers of attorney because, in the absence of clear guidance, those holding the Will of an incapacitated person have, understandably, been unwilling to release the Will to an attorney when requested. As a result, Attorneys have experienced difficulty when trying to establish the final wishes of a Donor.

This air of uncertainty looks set to clear following the issue of a Law Society Practice note, which now makes it clear that a Donor’s Will forms part of the financial affairs belonging to the Donor. Therefore, unless the Donor provides contrary instructions, an Attorney acting under a Property and Financial Affairs LPA is entitled to see a copy of the Donor’s Will. This will, therefore, allow an Attorney to:

  • Take and act upon appropriate professional advice;
  • Make appropriate investments;
  • Apply to the court for an order to save a specific legacy 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; and
  • Arrange for the safekeeping and storage of the asset.

Although having access to the Will means an Attorney can have regard to succession plans, it is important that Attorneys ultimately adhere to the overriding principle to act in the best interests of the Donor when making decisions on their behalf.

It can often be the case that those appointed to act as Attorney are also named as beneficiaries in the Donor’s Will. There is, therefore, a concern that if an Attorney discovers that they are benefitting under the Will, they may not then act in the best interests of the Donor.

As the saying goes, with great power comes great responsibility, and in this case, it will be borne by both those named as Attorney and those holding the Will of an incapacitated Donor. For the latter, it will be important to ensure the Donor has lost capacity and investigate the intentions of the Attorney. If there is concern over the way in which the Attorney may act after accessing a copy of the Will, the request can be refused, and the concerns raised with the Office of the Public Guardian.

Ultimately, when making an LPA it will, therefore, be important for Donors to consider whether they wish for their Attorney to have access to their Will.

It is also important to remember that, even though an Attorney can access an incapacitated Donor’s Will, this does not give them the power to change the terms of the Will. Everything the Donor has put into their Will shall remain.

At Hay & Kilner our team of specialist solicitors advises clients in relation to the preparation of Lasting Powers of Attorney, the registration of Enduring Powers of Attorney and those appointed as Attorneys under both documents.

For further information or advice, please contact Alice Clewes, Partner in our Private Client Team

Call: 0191 232 8345

Email: Alice.Clewes@hay-kilner.co.uk