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Does an Attorney for Property and Financial Affairs have the right to see the Will of the Donor?
The Law Society’s Practice Note on Lasting Powers of Attorney (May 2016) discusses in detail this point and notes that the Will forms part of the financial affairs belonging to the Donor. This means, in practice, that a Property and Financial Affairs Attorney has the right to have a copy of the Will unless the Donor provides contrary instructions, or the Solicitor involved has reason to believe that the Attorney proposes to act in breach of their statutory or fiduciary duties as set out in Chapter 7 of the Mental Capacity Act 2005 Statutory Code of Practice at which point a Refusal Notice should be issued and lodged with Office of the Public Guardian.
If the Donor has made it clear that the Will should not be disclosed prior to death then it cannot, clearly, be disclosed without a specific court order. Where a Donor’s appointment under an EPA or LPA is reliant on a lack of capacity, then this will need to be evidenced.
It is, consequently, recommended that the Donor provide a clear authority regarding their Will as part of the instruction to appoint an Attorney to avoid any complications.
There is no need for an Attorney or Deputy to require the original Will prior to death of Donor – the copy should be more than adequate.
If you have any questions about your role as an Attorney, or wish to appoint Attorneys under a Lasting Power of Attorney for Property and Financial Affairs and/or Health and Welfare, our expert solicitors can assist and guide you through the process. Please contact Lucy Thomas at our Cockfosters Office or Judith Bleetman at our East Barnet office on 020 8441 1556 or firstname.lastname@example.org