The Law Society’s Practice Advice Service provides answers to some frequently asked questions
I hold the deeds of a property for an elderly client following the death of her husband many years ago. I have now received a request for the deeds from another firm. The authority I have received is signed by her attorney. I have also been sent a certified copy of her property and financial affairs lasting power of attorney (LPA), and I have noted that the authority has been signed only by one of her three attorneys. Am I obliged to ask for the other attorneys to sign the authority and to ask why the donor has not signed it herself?
First, consider the LPA to check if it is valid and has been registered. LPAs must be registered in all cases before they can be used. This differs from enduring powers of attorney, which only have to be registered when the donor has lost or is losing capacity. If the LPA has been registered, it will have “validated” in perforated letters throughout the document.
Provided it has been registered, the next thing to check is how the attorneys have been appointed. If they have been appointed jointly, then all three must act jointly, but if they have been appointed jointly and severally, then any one of the attorneys can act.
Check that there are no restrictions in the document (such as the attorneys only being able to act if the donor has lost mental capacity, as evidenced by a doctor’s report). If there are none, then the LPA should be considered as authorising the third attorney to act as an agent for the donor, and the deeds should be released on that authority.
However, if you have concerns about the validity, you may also wish to make enquiries of or about the donor (who is the former client in this case).
I prepared a will and an LPA for an elderly client a few years ago. The LPA has since been registered and the attorney has requested a copy of the donor’s will. Am I obliged to disclose a copy of the donor’s will?
You are under a duty to keep the affairs of your client confidential, as required under chapter 4 of the SRA Code of Conduct 2011. However, circumstances may arise where the attorney may need to know about the contents of the donor’s will in order to avoid acting in a manner contrary to the testamentary intentions of the donor.
The question of disclosure of the donor’s will should be discussed with the donor at the time of making the LPA, and instructions should be obtained as to whether disclosure is denied, or the circumstances in which it is permitted. If no sufficient authority is available, the attorney should apply to the Court of Protection for a specific order for the contents of the will to be disclosed.
For further information, see the Law Society’s practice note on lasting powers of attorney, available from our website at www.lawsociety.org.uk/practicenotes.
I work as practice manager at a firm that deals predominantly with private client work. The firm is in the process of reviewing its file retention policy. Is there any information on retaining client files and papers?
Yes. You may wish to refer to the Law Society’s ‘File retention: trusts’ and ‘File retention: wills and probate’ practice notes, available from our website at www.lawsociety.org.uk/practicenotes. These set out information to help practitioners identify issues that should be considered before relevant files are ‘weeded’ or ‘destroyed’.
The partners in our firm have been appointed as executors in a will. However, we no longer carry out probate work and wish to renounce the appointment. Can we do this?
Yes. Where all the partners were appointed executors, rule 37(2A) of the Non-Contentious Probate Rules 1987 (as amended) allows two partners to renounce probate (and administration with will annexed) on behalf of and with the authority of the other partners. The renunciation must recite the authority of the other partners. The executors must not have assumed a duty or performed an act which would normally only be attributable to a person assuming the executorship.
See also section 20 of part B, and EP.2 in part H of the ‘Law Society Wills and Inheritance Protocol’, regarding having a policy on renunciation for your practice. The protocol is available from our website at www.lawsociety.org.uk/accreditation/documents/wiqs-wills-and-inheritance-protocol.
If no sufficient authority is available, the attorney should apply to the Court of Protection for a specific order for the contents of the will to be disclosed
This column is compiled by the Law Society’s Practice Advice Service, telephone 0870 606 2522. Comments relating to the questions should be sent to Mrs Anjali Mouelhi, Solicitor Technical Adviser, The Law Society, 113 Chancery Lane, London, WCA 1PL. While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.