The Importance of Obtaining a Copy of the Will for a Property and Financial Affairs Deputy

Assuming the responsibility to act as a Deputy for an incapacitated person is a significant undertaking, as you are assuming personal liability for ensuring that another individual’s property and financial affairs are properly managed.  You could be fined or sent to prison for up to 5 years (or both) if you mistreat or neglect the incapacitated person deliberately, or if you do not otherwise exercise your duties as a Deputy with reasonable care. 

Property and Financial Affairs Deputies owe a duty when making financial decisions to consider the succession plans which were put in place by the person for whom they act.  This responsibility is contained within section 4(6)(a) of the Mental Capacity Act [2005], where it is stipulated that a Deputy must “consider, so far as is reasonably ascertainable … the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity.”  A Will is strong indication of a person’s previous thoughts and feelings regarding the handling of their assets, and ought to be considered as part of a Deputy’s ongoing succession planning.

The primary concern is that the Deputy could unknowingly frustrate the testamentary wishes of the incapacitated person by disposing of assets and reinvesting funds elsewhere.

One example of this is where the incapacitated person has gifted their Premium Bonds to their nephew in their Will (which at the time of writing the Will were worth £500), but the Deputy (not being aware of the contents of the Will) has then sold another asset in the estate, and reinvested £49,500 into said Premium Bonds.  Now, the incapacitated party has £50,000 in Premium Bonds, and the nephew will stand to receive much more from the estate than was initially intended.  Clearly, it was not the intention of the incapacitated person at the time for their nephew to receive such a large sum, but in not considering the Will when making the decision, the Deputy significantly altered how the estate will now pass. 

If changes have been made to an incapacitated person’s estate that alter the effect of their Will so their wishes have been frustrated, then it is possible to apply to the Court of Protection for a Statutory Will to correct the issue.  Such orders are issued sparingly, however, and come with quite significant additional cost.  It is best to avoid the need for such emergency corrective action at all.

It is entirely possible that an incapacitated person may have expressly wished that their Will ought to not be disclosed to any third parties before their death, and legal practitioners must have regard to the terms of the Deputyship Order when deciding whether or not to release a copy of a Will to a Deputy.  If the incapacitated person did not wish for their Will to be disclosed, then a Deputy may need to apply to the Court of Protection to seek permission to obtain a copy of the Will.  They would need to confirm to the court why they need a copy of the Will (e.g. that they are looking to sell the property or otherwise dispose of assets and wish to make sure that they are not specifically gifted), and it is possible that the order may not be granted. 

If you have any questions regarding your responsibilities as a Deputy, or if you need to make an application to the Court of Protection, then please contact the team on contact@leedsday.co.uk or 0333 577 2250.