Can I disclose the will of an incapacitated client?

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Last updated on 19/12/2019

The following Practice Compliance Q&A provides comprehensive and up to date legal information covering:

  • Can I disclose the will of an incapacitated client?
  • Who is my client?
  • Can I disclose the will?
  • When should I not disclose a copy of the will?
  • Are there any procedural issues to consider?

Can I disclose the will of an incapacitated client?

This Q&A considers if and when you can disclose a copy of a client’s will (contrary to your duty to keep your client's affairs confidential) to a property and financial affairs attorney or deputy appointed by the Court of Protection in circumstances where the client has lost mental capacity. It is based on Law Society guidance on access and disclosure of an incapacitated person’s will.

For more information, see Practice Notes: Vulnerable clients—regulatory requirements and Duties of confidentiality and disclosure 2019.

Who is my client?

Your client remains your client even if they have an attorney/deputy acting on their behalf.

You can accept instructions given by someone other than the client if that person has proper authority to give those instructions. In this context, this is likely to arise in one of two ways:

  1. if your client has made a power of attorney, they remain the client acting through their agent, the attorney

  2. a deputy appointed for your client by the Court of Protection will be acting on their behalf as a statutory agent

Can I disclose the will?

Your client's attorney or deputy has been authorised to manage their financial affairs, which includes their will.

An attorney or deputy is under a duty to act in the best interests of your client. This extends to not interfering with their succession plans when

Related documents:
Key definition:
Deputy definition
What does Deputy mean?

An individual appointed by the Court of Protection to make decisions on behalf of a protected person in respect of either their property and financial affairs or health and welfare. The duties of deputies are set out in the Mental Capacity Act 2005 (MCA 2005) and its accompanying practice'>Code of Practice.

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