Access and Disclosure of an Incapacitated Person’s Will – Law Society Oct23

This guidance clarifies when a solicitor can disclose a copy of a client’s will and/or codicil(s) to a property and financial affairs attorney or deputy in circumstances where the client has lost mental capacity.

This practice note is the Law Society’s view of good practice in this area, and is not legal advice. For more information see the legal status.

Introduction

Who is your client?

You can accept instructions given by someone else, where the person providing the instructions has the authority to do so on behalf of the client (Paragraph 3.1 of the SRA Code of Conduct for Solicitors, Registered European Lawyers (RELs) and Registered Foreign Lawyers (RFLs)).

Where the client (also known as ‘the donor’) has made a power of attorney, they remain the client acting through their agent – the appointed attorney.

A deputy appointed by the Court of Protection will be acting on behalf of the person for whom they act, who lacks mental capacity, as a statutory agent (s19(6) Mental Capacity Act 2005).

Whether instructions come from an attorney or a deputy, (in that role) your duty of care is to the person on whose behalf they act.

Duty of an attorney or deputy

The Court of Protection has made it clear that property and financial affairs attorneys and deputies owe a duty when making financial decisions, so far as is reasonably possible, not to interfere with the succession plans made by the person for whom they act (Attorney-General v The Marquis of Ailesbury (1887) App Cas 672 and Re Joan Treadwell (2013)).

It is compatible with section 1(6) of the Mental Capacity Act 2005 which requires that before an act is done or a decision is made, regard must be had to whether the purpose for which it’s needed can be as effectively achieved in a way that’s less restrictive of the person’s rights and freedom of action.

Having knowledge of the contents of the will and/or codicil(s) means that the attorney or deputy is in a position to act in the best interests of the person for whom they act and in particular may:

take and act upon appropriate professional advice
make appropriate investments
apply to the court for an 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 that it reflects the intentions of the person who lacks mental capacity and the relevant circumstances and
arrange for safekeeping and storage of the asset

Scenarios of possible adverse outcomes which can occur without knowing the content of the will

Jack’s case

Jack has made a will giving his house (currently worth £300,000) to his nephew, Paul, and the residue (about £20,000) to charity. He also made a property and financial affairs lasting power of attorney, without any restrictions in favour of Paul. This has been registered with the Office of the Public Guardian.

Jack subsequently has a stroke and is no longer able to live in his own home. Paul decides that he must sell the house to pay for Jack’s care.

The effect of selling the house is that when Jack dies, the gift in the will to Paul fails and he gets nothing. The charity benefits from the whole of the estate. This was not what Jack intended.

However, if Paul is aware of the contents of the will, he can apply to the Court of Protection for either:

a statutory will to be made so that Jack’s wishes are followed or
obtain an order for sale, which under the Mental Capacity Act 2005 ensures that the gift is saved. (Schedule 2, paragraphs 8 and 9 of the Mental Capacity Act 2005 enables the preservation of an interest in property, which is disposed of on behalf of a person who lacks mental capacity under a court order, where that interest in property is the subject of a gift under the person’s will.)

June’s case

June has made a will in which she gives her friend Margaret her premium bonds. At the time of making the will these are worth £500. June’s son David is the sole residuary beneficiary. David is unaware of the contents of the will.

June has dementia and lacks mental capacity to manage her finances. David is appointed as June’s deputy. He decides he should invest £49,500 of June’s money in premium bonds.

June dies. David discovers that Margaret will now get £50,000 premium bonds (much more than his mother ever intended) and he gets less than intended.

Had David been aware of the will, he would have invested his mother’s money differently, so as not to frustrate June’s succession plans.

Instructions at the time of making a will and a lasting power of attorney

Solicitors have a duty to act in their client’s interests. The will forms part of the financial affairs belonging to the donor so unless the donor provides contrary instructions, the attorney is entitled to a copy of the donor’s will.

To evidence compliance it’s advisable for the question of disclosure of the donor’s will to be discussed and recorded at the time of making the will and confirmed at the time of making the lasting power of attorney (LPA).

Having advised as to the consequences, instructions should be obtained as to whether disclosure is to be denied, or the circumstances in which it is permitted. This should be incorporated into the LPA or contained in a side letter.

See our practice note on lasting powers of attorney.

Instructions for non-disclosure

If the client has made it clear that their will is not to be disclosed prior to their death, it should not be disclosed.

If a specific court order has been obtained requiring disclosure of the will, you must comply with the order and disclose the client’s will.

However if you believe disclosure is not in the client’s best interests you’ll need to seek a variation of the order by submitting a witness statement to the Court of Protection which explains why the will should not be disclosed. A witness statement should be made on form COP24.

You may also ask the Court of Protection for authority for payment of your costs to be paid out of the client’s estate.

Incapacity restriction

If the LPA or enduring power of attorney (EPA) contains a restriction which prevents the attorney from acting until the donor lacks mental capacity to manage their property and financial affairs, you’re advised to require of the attorney sufficient evidence to satisfy himself or herself that the attorney has authority to now act under the power.

As an EPA must be registered by the attorney, with the Office of the Public Guardian when the attorney believes the donor has become, or is becoming, unable to manage their property and financial affairs, a registered EPA will be sufficient evidence of the donor’s mental incapacity.

This assumption cannot be made with a registered LPA, as registration does not indicate incapacity. The attorney should provide sufficient evidence to confirm that the donor lacks capacity to consent to the disclosure of the will.

The will is the client’s property

The property and financial affairs attorney or deputy is the client’s agent and the will forms part of the property and financial affairs which the agent is authorised to manage. As such, a full copy of the will can be disclosed to the attorney or deputy, unless:

there’s an instruction to the contrary within the LPA, EPA or the court order or
the disclosing solicitor has cause for concern (see section 8 below)

You should retain the original will as part of the client’s papers, in accordance with the original retainer, unless ordered otherwise by the Court of Protection.

Concerns about an attorney or deputy

There may be occasions where you’re aware or have reason to believe that the attorney or deputy has acted, is acting, or proposes to act in breach of their statutory and/or fiduciary duties as set out in Chapter 7 of the Mental Capacity Act 2005 Statutory Code of Practice.

For example, where you have credible information which gives cause for reasonable concern that if the will were disclosed there is a reasonable belief that the attorney or deputy may act or make a decision which is not in the best interests of the person for whom they act.

In such circumstances, you may consider that it is not appropriate for the will to be disclosed, as it is not in the best interests of the client.

In such case, the Refusal Notice in the Annex to this guidance should be given to the attorney or deputy.

At the same time, you should contact the Office of the Public Guardian and inform them of your concerns:

PO Box 16185
Birmingham
B2 2WH

Email: opg.safeguardingunit@publicguardian.gsi.gov.uk

Call: 0300 456 0300

The nature of a concern raised to the Office of the Public Guardian will require disclosure of confidential information and is likely to be justified from a professional conduct perspective.

Examples of concerns

Examples of concerns include, but are not limited to, the following situations:

the attorney or deputy wishes to transfer or has transferred the client’s assets to themselves or someone who is related or connected to them
an indication of missing or converted assets
the attorney or deputy has had an unexpected change in lifestyle or circumstance
care fees are not being paid
an investigation into and/or application for the attorney’s or deputy’s removal is in the process of being made
the attorney or deputy refuses to disclose the client’s residence

Notification of disclosure to the donor

It’s both courteous and good practice to let the donor know in advance of sending the will to the attorney, that the attorney has requested a copy of the will and it is intended that it is to be provided to them.

Letter 1 as set out in the Annex to this guidance should be sent to the donor, regardless whether or not the donor has mental capacity.

The attorney should also personally inform the donor that they have requested a copy of the will.

Letter 2 is a standard letter that can be used as a covering letter for sending the will to the attorney.

Notification of disclosure to P by the deputy

The Court of Protection appoints a deputy to make property and financial affairs decisions on a continuing basis, the wide terms of which enable the deputy to see a copy of the will of the person for whom they have appointed to act (P).

However, incapacity is not a continuing state, so even where the court has appointed a deputy, P is not prevented from making decisions, where the deputy knows or reasonably believes P has capacity in relation to that decision (Mental Capacity Act 2005, section 20(1)).

As such, it is for the deputy to ascertain whether P has sufficient capacity to make the decision for disclosure of the will or whether the deputy can rely on the court order.

It would be unduly onerous to require the deputy to provide medical evidence of capacity on each and every decision they make, including capacity to consent to disclosure of P’s will, so you’re able to rely on the deputy’s request for disclosure.

Letter 2 is a standard letter that can be used as a covering letter for sending the will to the deputy.

Further support and guidance

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Access and Disclosure of an Incapacitated Person’s Will – Law Society Oct23

Introduction

Who should read this guidance?

What is the issue?

Aim of the guidance