Social distancing and self-isolation, coupled with the sudden increase in demand for wills and lasting powers of attorney (LPAs), are presenting unique challenges for private client practitioners. Lesley King and Roman Kubiak consider how to tackle these issues – at a safe distance. While the government has included solicitors who act in connection with the execution of wills as “keyworkers”, confusion currently abounds as to best practice when it comes to taking instructions for, preparing and executing wills. A number of professional bodies and membership organisations, including the Law Society, STEP and Solicitors for the Elderly (amongst others) have been liaising; and the Law Society has put forward proposals to the Ministry of Justice to look at how it might relax the formal requirements on executing and witnessing wills, and help to fast track LPA registrations. The Law Society has released advice on best practice for solicitors, such as:
be alert to the possibility of undue influence and the need to assess capacity when making wills
make full notes of the meeting / discussion and the instructions that you receive, for your will file, and
once circumstances permit, arrange to see the client to confirm the instructions in private, arrange a capacity assessment if needed, and re-sign the will.
The SRA stated it expects solicitors to comply with legal requirements and advise clients appropriately. It does not prescribe how these should be met or set its own specific requirements. Solicitors will need to ensure they are acting in the best interests of their client, in line with the SRA Principles. The SRA appreciates that “current circumstances may require solicitors to make difficult and novel judgements and where solicitors undertake these types of decisions, there is an expectation that they keep appropriate records and files notes”. STEP has acknowledged that conducting a meeting over the telephone or via video-conferencing presents difficulties for practitioners who need to assess and record mental capacity. However, at present we must work within the confines of the existing requirements. During current lockdown conditions, solicitors cannot go into hospitals and care homes and assessing capacity and validly executing a Will remain a challenge for Solicitors to navigate. If you are looking for up to the minute advice on the preparation of a Will, Lasting Power of Attorney or how to go about providing us with your instructions please get in touch.