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Does your Attorney or Deputy have a right to look at your Will?
Until recently, no one had an automatic right to see your Will, even if you had lost capacity to make a financial decision. If you wanted to allow your Attorney to see your Will, you would have to have included a specific condition in your Lasting Power of Attorney for Property & Financial Affairs or signed a separate letter to go with your Enduring Power of Attorney. Without that, your Attorney did not have authority to see your Will without an Application to the Court of Protection.
It has now been decided that having knowledge of the contents of a Will and/or Codicils(s) means an Attorney or a Deputy acting for someone in relation to their Property & Financial Affairs is in a position to act in the best interests of the person for whom they act. In particular it means an Attorney or Deputy may:
- take and act upon appropriate professional advice
- make appropriate investments
- apply to the Court for an order to save a specific legacy in the Will (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
- arrange for safekeeping and storage.
The Court of Protection says that, although Property and Financial Affairs Attorneys and Deputies owe a duty when making financial decisions, so far as is reasonably possible they should not interfere with the succession plans made by the person for whom they act. If for whatever reason it is necessary, however, then the right has now been given to Attorneys and Deputies to have sight of the Will.
This means that if, for whatever reason, you do not want your Attorneys or anyone else seeing your Will, when you make a Lasting Power of Attorney for Property and Financial Affairs you will need to include a specific restriction in that Power excluding them from their automatic right while acting as your Attorney.
For advice on writing a Will, please contact Charles Fraser.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.