Are Attorneys entitled to see the Donor’s Will?
The standard position is that Attorneys may see the Donor’s Will as long as the Donor has given no instructions to the contrary. Express authorisation in the terms of the Power of Attorney is not required. However, there are some important factors which can change this standard position.
The type of Power of Attorney
If you have only been appointed as an Attorney under a Lasting Power of Attorney for Health and Care, you will not have any entitlement to see the Will. The Donor’s Will relates to their property and finances and so it would be outside the scope of health and care matters.
Attorneys under a Lasting Power of Attorney for Property and Financial Affairs or under an Enduring Power of Attorney are not restricted in this way.
The terms of the Power of Attorney
The terms of a Power of Attorney indicates when it takes effect and the scope of an Attorney’s powers. As mentioned above, a Donor can expressly deny Attorneys the right to see the Donor’s Will. However, terms which expressly allow Attorneys to see the Will are not required.
Essentially, the terms of the Power of Attorney have to be consistent with the idea of using it as legal authority to see the Donor’s Will.
A clear example of this is looking at whether the terms of the power allow it to be used at a given time. When making a Lasting Power of Attorney for Property and Financial Affairs, a Donor can choose to allow the power to be used even if they have the mental capacity to make decisions for themselves. Enduring Powers of Attorney cannot be created any more, but it was also possible to specify this when creating them. The terms of the Lasting Power of Attorney or Enduring Power of Attorney set this out. Alternatively, the terms might state that the Power of Attorney can only be used once the Donor has lost mental capacity.
As such, you cannot use the authority of a Power of Attorney to see the Donor’s Will if its terms have not brought it into effect.
The Donor’s mental capacity
If the Donor still has mental capacity at the time you are requesting sight of their Will, the Donor must provide their consent. You will not have authority to look at the Donor’s Will if they refuse their consent.
However, if the Donor has lost mental capacity it is important to check for any instructions they may have made prior to their loss of capacity which allow or refuse you sight of their Will.
You should bear in mind, however, that just because a Donor has lost the mental capacity to make certain decisions, it does not mean they have lost the mental capacity to make every decision. Part of your duties as an Attorney involves making every effort to allow the Donor to make their own decisions if possible.
Enduring Powers of Attorney can only be registered when the Donor has lost capacity. Therefore, a registered EPA will be sufficient evidence on its own that the Donor has lost mental capacity.
The duties of the person holding the Will
Usually, a person’s Will is held by a solicitor. If the Donor’s Will is being held in this way, the solicitors will also owe duties to the Donor, these include duties to keep the Will and its contents confidential and also to act in the best interests of the Donor as part of the client/solicitor relationship.
In rare circumstances, such as where it is unclear whether disclosing the Will to an Attorney is in the Donor’s best interests, they may have professional grounds upon which to refuse disclosing the Will.
Alternatively the person holding the Will may be a different Attorney under a separate power, or a Deputy under a Deputyship Order, if so, they will have similar duties to those imposed on a solicitor to act in the Donor’s best interests.
What are my duties as an Attorney when seeing the Will?
If you are granted access to the Donor’s Will, it is important to remember that you will be under a duty of confidentiality in a similar way to a solicitor. This means you must not reveal the contents of the Will to anyone else unless your disclosure has been authorised by the Donor themselves.
Alternatively, if the Donor no longer has mental capacity, you can only disclose the Will or its contents to other people if it is in the Donor’s best interests for you to do so.
What happens when the Donor dies?
Lasting Powers of Attorney and Enduring Powers of Attorney end when the Donor dies. This means you must immediately stop using the power as authority to take actions and decisions on the Donor’s behalf.
Upon a Donor’s death, their Personal Representatives, such as the Executors appointed in their Will, step in to take over handling of their property as part of the probate and estate administration process. Even if you have been appointed as an Executor, you must only act in relation to the deceased Donor’s property when you have received the proper legal authority, such as through a Grant of Probate. You cannot continue acting as an Attorney.