Can a solicitor release the Will of a mentally incapable client to their attorney?
As Practitioners are aware Property and Financial Attorneys and Deputies owe a duty when making financial decisions, so far as is reasonably possible, to consider succession plans made by the person for whom they can act. Having knowledge 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.
Practitioners will find this guidance very useful.
- The Practice note can be found at http://www.lawsociety.org.uk/support-services/advice/practice-notes/incapacitated-persons-will. (available to members only)
- a flow-chart at http://www.lawsociety.org.uk/support- services/notes/documents/disclosure-will-flowchart, (available to members only)
- and precedent letters at http://www.lawservices/advice/practice-notes/access-and-disclosure of-an-incapacitated-persons-will (available to members only)
The 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 when a client has lost mental capacity.
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The key elements to the guidance are:
- The Solicitor can accept instructions given by someone else, where he person providing the instructions has the authority to do so on behalf of the client. Whether instructions come from an Attorney (agent) or a Deputy (statutory agent), the Solicitor’s duty of care is to the person on whose behalf they act.
- Solicitors have a duty to act in their client’s interests. The Will and Codicil (s) forms part of the financial affairs belonging to the Donor and so unless the donor provides contrary instructions, the Attorney is entitled to see a copy of the Will and or Codicil (s).
- To evidence compliance, it is advisable for the question of disclosure to be recorded at the time of making the Will and confirmed at the time of making the LPA. Instructions should be obtained and incorporated in a side letter or within the LPA itself.
- If the client has made it clear that the Will and or Codicil (s) should not be disclosed, it should not be disclosed unless ordered by the Court of Protection. If ordered by the Court to disclose and the Solicitor believes it is not in the best interests of the client, then the Solicitor can seek a variation of the disclosure order.
- If the LPA or EPA contains a restriction which prevents the Attorney from acting until the Donor lack mental capacity to manage his property and financial affairs the Solicitor is advised to require the Attorney to satisfy himself that the Attorney has sufficient authority to act.
- 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. Although incapacity is not a continuing state, it would be unduly onerous to require the Deputy to provide medical evidence of capacity so the Solicitor is able to rely on the Deputy’s request for disclosure.
- The original Will should be retained by the Solicitor as part of the client’s papers in accordance with the original retainer unless ordered otherwise by the Court of Protection.
The guidance gives very useful examples of what can occur in practice.
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