top of page
  • Writer's pictureThe Will Partners

Does a Lasting Power of Attorney Give Access to the Donor’s Will?

lasting power of attorney

If a Lasting Power of Attorney (LPA) for Property and Financial Affairs or an older Enduring Power of Attorney (EPA) exists, the attorneys may want to check the donors latest Will but

may need authority to do this.

Can details of the Will be disclosed to attorneys?

If the donor still has mental capacity, they can choose whether they wish for their Will to be disclosed and clearly must give their permission to do so.

If the donor has lost capacity, it was previously thought that the contents of the donor’s Will could not be disclosed to their attorneys unless the LPA or EPA gave specific authority for this. Since 1st March 2017, it is now accepted that the contents of the donor’s Will can be disclosed to their attorneys, even if the LPA or EPA does not give specific authority and as long as there are no written restrictions preventing disclosure.

What happens after the donor has died?

Any LPA or EPAs will cease immediately on the death of the donor. The Will cannot

therefore be disclosed to the attorneys after the donor’s death and should only be disclosed to the deceased donor’s personal representatives.

What should be included in the Lasting Power of Attorney?

If the donor wishes to refuse consent to disclose the details of their Will to their attorneys, or wish to only permit disclosure in certain circumstances, the LPA should include specific instructions to restrict the attorney’s ability to see the terms of their Will.

If the donor wishes for the attorneys to be able to see the details of their Will it is helpful to include specific authority and make it clear to the attorneys that they have this authority.

Why might the attorneys need to know the details of the donors Will?

The Court of Protection has made it clear that attorneys under a Property and Financial Affairs LPA or an EPA owe a duty to the donor when making financial decisions and so far as is reasonably possible, not to interfere with the donor’s succession plans. This is compatible with S1(6) MCA 2005 which requires attorneys to consider, before acting, whether the purpose of a proposed action can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Knowing the contents of a donors Will can help

attorneys fulfil their duties such as by taking investment advice and ensuring certain assets are insured or protected.

This may be particularly relevant if the Will contains specific gifts, for example of a property or specific bank account. Without knowledge of the terms of the Will, the attorneys may sell this property or close the bank account and cause the gift in the will to fail. There are no statutory provisions to ensure that the beneficiary of a failed gift instead benefits from a cash sum due to the attorney selling the asset. Deputyships however do allow for this due to the provisions of Paragraph 8 of Schedule 2 Mental Capacity Act 2005.

Can the attorneys amend the will?

Absolutely not!! Attorneys do not have the authority to amend the donor’s Will or make a new Will for the donor. It is never possible to give them this authority. If a person no longer has capacity to make a new Will, an application can only in these circumstances be made to the Court of Protection.

If you would like to find out more about making a power of attorney or a will to look after your family please contact us today. We will come and visit you in the comfort of your own home to discuss your options with you.


bottom of page