Lasting Power of Attorney Guidance

Trusts Discussion
1

We have received a request which attaches the Law Society Guidance on releasing wills to Attorneys. The other solicitor’s client lacks capacity under a registered Lasting Power of Attorney. Firstly am I right in thinking I would need to see evidence of lack of capacity in order to release and if so what should this look like?

Secondly I would like people’s opinion on whether we are bound by this. It is a practice note, although it appears to be supported by most bodies, however I still do not feel comfortable giving a Will out in those circumstances. I would like thoughts on how binding this should be and whether as a solicitor you would be able to decide not to release the Will and in what circumstances that might be.

Paul Mounce
Graham & Rosen

2

The snazzy flowchart (I love a flow chart) seems to say that you will need evidence of lack of capacity if the LPA is restricted, and if not then you’ll need to write to the donor. Is the other firm suggesting you just send it over without any of that?

Fiona Wheeler
The Burnside Partnership

3

No they have provided evidence of lack of capacity, it is more just a general unease. The Practice Advice service said that although it is a practice note, it is the best we have so we should comply with it. I am just not sure how much weight should be given to it.

a year ago I was applying to the court to get permission as a deputy to see a will and now I am being asked to release it to an attorney. Maybe me being overcautious, just curious as to what others think.

Paul Mounce
Graham & Rosen

4

I would be uncomfortable in sending the original Will. Perhaps a copy would suffice?

I think you can refuse to comply with the request but you have to document your reasons for so doing.

Michael Packham
Standley & Co

5

I would have thought sending a copy would be sufficient and possibly
contacting the Executors if they are different to the Attorney’s.

I understand that going forward and in the abscence of an express direction
in the LPA, Attorney’s will have the right to see the Will and have the
original as this falls under the donor’s personal possessions.

Shanti Palmer
SP Wills

6

I think the Practice Note refers to supplying a copy of the Will. I would only release the original to the executors on production of death certificate and proof of ID.

Iain Cameron
STAR LEGAL LIMITED