A tip for Lasting Powers of Attorney

15 August 2013

Lasting Powers of Attorney should be regarded as central to any family’s wealth planning armoury. Even non-UK domiciled individuals should make one if they directly own UK assets (something that those de-enveloping UK real estate from offshore structures into direct ownership should be being advised about, but that’s another story). It is no laughing matter if the owner of the family finances suddenly loses mental capacity to deal with them and the family can no longer access funds to cover its expenses. Deputyship applications to court still take a very long time.

One aspect of Lasting Powers that can be easily overlooked is the attorney’s ability to gain access to the Will. After all, if you as an attorney are charged with looking after the LPA-giver’s (the donor’s) assets, the last thing you want to do is deal with something in a way that is inconsistent with the person’s Will, if you can help it at all. Yet many attorneys are surprised to find out that solicitors cannot just release a copy of the Will (or any other document that they are holding in their deeds store) to them because the solicitor owes a duty of confidentiality to the donor which endures, even if the donor has lost their marbles! If the attorney cannot locate a copy of the Will by any other means, a Court of Protection application will ensue. And that is bad news.

The best thing to do is to ensure that a waiver is lodged with the solicitor so that copy documents in the solicitor’s possession can be released. Or insert a consent to disclose in the Lasting Power document itself. A very simple step that could avoid an expensive court application.

Helena Luckhurst Author
Helena Luckhurst
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