Creating a lasting power of attorney naming a representative to look after your affairs should you become unable to manage things yourself, is something I would advise everyone to do.

But what if you are named as an executor of a will and lose mental capacity? Can your appointed attorney carry out this role for you?

In a recent case (Whittaker v Hancock, 2018), John Parker appointed his wife Margaret and his niece Christine Hancock as joint executors of his will.

On being diagnosed with dementia Margaret granted her daughter Janet Whittaker lasting power of attorney and when John died in March 2016 Margaret’s condition had advanced, resulting in her having insufficient mental capacity to act as executor of his will.

John’s niece Christine Hancock applied for probate, but when Mr Parker’s estranged daughter intervened to claim a share of the estate, Christine decided she did not want to be involved in litigation.

Margaret’s daughter Janet stepped in to apply to take over as the second executor acting in her capacity as her mother’s attorney.
The High Court needed to decide whether Janet Whittaker’s duty as attorney looking after Mrs Parker’s property and financial affairs extended to administering Mr Parker’s estate.

The judge ruled that Mrs Parker’s interest in her husband’s estate did come under the definition of property and financial affairs, enabling Mrs Parker’s appointed attorney to act as executor of the will on her behalf.

Seemingly straightforward family circumstances can become surprisingly complex. For me this case strengthens the role of attorneys and underlines the importance of putting in place property and financial lasting powers of attorney appointing a trusted individual to look after your affairs should you be unable to do so.

It is not uncommon for couples to make wills appointing each other as sole executor of the estate. If there is no viable substitute named and the survivor is incapacitated, having an attorney will mean that the estate can still be administered.

For more information about lasing powers of attorney, please phone 01782 205000 or email chloe.robinson@beswicks.com