ByLawyers News and Updates

Should you hand over a copy of a will to an attorney under power?

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By Donna Cooper, Ethics4lawyers

Consider the following common ethical dilemma: You have a long standing elderly client whose adult son telephones to say that he’s moving his mother into a nursing home and would like to come in to collect a copy of her will from your office this afternoon. You know the adult son and you are aware of the fact that he is the sole attorney under power for his mother as well as the sole executor of her estate. He tells you that his mother has recently lost capacity and is not capable of managing her affairs. Should you hand over a copy of the will to him when he arrives this afternoon?

‘A power of attorney will not give automatic access to the principal’s will’

The solicitor owes a duty of confidentiality to the principal regarding the principal’s affairs, including a duty to maintain confidentiality over the contents of the principal’s will. The solicitor also holds the physical will document as baliee. The principal-attorney relationship (in common law jurisdictions) has its roots in agency, which is a fiduciary relationship created by equity. Whether or not the attorney (as agent for the principal) is exercising a valid power which is within the scope of the original instrument is the subject of this ethical dilemma.

‘The role of a representative is not an unregulated one nor is the representative’s power unfettered. Many jurisdictions have codified legal and ethical responsibilities such as obligations to act honestly and with reasonably diligence; to exercise powers according to the terms of the instrument and the ascertainable wishes of the principal; to avoid conflict transactions; to keep records; and to keep property separate.’

The Powers of Attorney Act 2014 (Vic) provides that a person ‘may authorise an eligible attorney to do anything on behalf of the person that the person can lawfully do by an attorney.’ There are limitations on this however, for instance, an attorney cannot vote in an election on behalf of a principle, or consent to the marriage of a principal, or make/revoke a will. Given the previously mentioned fiduciary duty of confidentiality owed by the solicitor to the principal regarding the principal’s will, the logical conclusion is then that the attorney is not entitled to see or deal with the principal’s will unless the principal has authorised it, or it is relevant to the management of the principal’s affairs.

The Powers of Attorney Act 2014 (Vic) relevantly states that –

s.21(2) If an attorney under an enduring power of attorney is making a decision about a matter on behalf of a principal who does not have decision making capacity in relation to that matter, the attorney must –

(a) give all practicable and appropriate effect to the principal’s wishes; and …

(c) act in a way that promotes the personal and social wellbeing of the principal, including by …

(iii) respecting the confidentiality of confidential information relating to the principal.

In the above scenario, the request for a copy of the will appears to be to ensure the attorney gives effect to the principal’s (testamentary) wishes by not selling an asset which may be specifically gifted in order to fund her nursing home stay.

Some solicitors may accept the explanation of the attorney and hand over the copy will without making further enquiries. This is not recommended. (A move by a client into a nursing home does not of itself indicate incapacity.)

Making further enquiries is particularly important when there is a suspicion that an attorney could be seeking to abuse their power in some way.

As Ken Aitken states in his classic article ‘Enduring Powers and Wills’:

‘The purpose for which a general or an enduring power of attorney is given is to enable the attorney to manage the principal’s affairs. Any exercise of the power not directed to that end, although it may fall within the language of the instrument, is nevertheless, ultra vires and ineffective.

The principal’s will does not normally have relevance to the management of the principal’s affairs. The attorney cannot alter or revoke the will or make a new will.

The request is [for production of the original will] on the face of it, beyond the power conferred on the attorney. It should be declined unless the attorney can justify the request by satisfying the practitioner that production or inspection of the will, or providing information about its contents, is required for the purpose for which the power of attorney has been granted, namely management of the principal’s affairs.

Inspection of the will or giving information about its contents may be justified where an attorney contemplates the sale of the principal’s assets and wishes to know whether any of the assets is the subject of a specific devise or bequest… The practitioner should judge whether the attorney’s requirements can be met by providing a copy of the will, permitting an inspection of it or providing information about its contents… Unjustified handing over of the will or disclosure of its contents may be a breach of the duty owed by the practitioner to the principal.’

This leaves the attorney with the following options:

  • To hunt around his mother’s house for a copy of the most recent will;
  • To make an application to VCAT for an order for production of a copy of the will (or its original) whereupon VCAT will likely require the attorney to produce a satisfactory reason for wanting it.

It may seem rather ‘over the top’ to require an attorney who appears to have the best interests of the principal at heart, to trot off to VCAT to obtain an order for production of a copy of the will. In some circumstances, a solicitor may be satisfied that there is no intended abuse of the power and may be satisfied that the request is a legitimate one made by the attorney. Queensland Law Society have suggested that a solicitor may in some circumstances, provide verbal advice to the attorney as to whether an asset is subject to a specific gift in the will, but notes that this may create more problems than it solves.

The Victorian Law Reform Commission in 2013 in its Succession Laws Report stated ‘the Commission believes an application to VCAT is more appropriate than giving the holder of the will a power to inform substitute decision makers about the content of a person’s will. A legal practitioner who holds a person’s will is doing so on a strictly confidential basis.’

The guidance provided by Ken Aitken in his article back in 1999 is still considered good advice now, in that the request by the attorney ‘should be declined unless the attorney can justify the request by satisfying the practitioner that production or inspection of the will, or providing information about its contents, is required for the purpose for which the power of attorney has been granted, namely management of the principal’s affairs.’ [Emphasis added.]

More recently, the Law Institute of Victoria’s Ethics Committee considered this issue in an Ethics Committee Ruling R4839 published in 2015:

‘A law firm acted for an elderly lady in various matters.  Over time, the client conveyed very sensitive and confidential information about her fractured family to her lawyers.  She subsequently lost capacity.  One of her sons held an Enduring Power of Attorney (Financial) and demanded that the lawyers release his mother’s “titles, documents, papers and files”. Initially this included her will, but the request for the will was withdrawn.  The certificate of title to her house was released to the attorney’s solicitors to ensure that it was not sold without his knowledge.  However, the demand by the attorney to release all of the other papers and files relating to his mother, including the will file, appeared to be beyond power.  The lawyers were of the opinion that their elderly client would never authorise them to directly release any information to any members of her family, given the sensitivity of the family relationships.  The attorney appeared to consider that his role as representative of his mother permitted him to stand entirely in the shoes of the mother and that he was entitled to instruct the lawyers to do anything that his mother might have instructed.

Ruling

In the opinion of the Ethics Committee and on the information presented

  • The lawyers’ fiduciary duty is to their former client, the donor. An attorney may represent the donor client, but the attorney does not replace the donor client in the client’s relationship with the lawyer.
  • The lawyers retain residual duties to ensure the protection of its former client’s confidential information.
  • The lawyers are entitled to refuse to release the papers, documents and files it holds on behalf of the donor as requested by her Attorney.  (This includes the will and the will file.)’

In 2013, the Law Institute of Victoria Council approved Powers of Attorney Guidelines (which currently require updating post the introduction of the Powers of Attorney Act 2014 (Vic)) but which relevantly state regarding this particular issue:

‘Practitioners who have been requested by the donor to hold his or her will for safe custody are sometimes requested by an attorney to hand over the original will to the attorney. Upon receiving such a request, the practitioner should confirm that it is the wish of the donor to hand over the will to the attorney. If the donor lacks capacity to instruct the practitioner, then, as a general principle, the practitioner should not hand over the original will to the attorney. However, where the practitioner considers that an attorney has made a bona fide request for a certified copy of the will, the practitioner should provide the attorney with either a certified copy of the will or relevant part of the will, or advice as to the content of the relevant part of the will.

For example: the sale by an attorney of a donor’s property which has been specifically devised under a will raises the question of whether or not ademption applies should the property be sold during the lifetime of the donor. For this reason, a request by an attorney for a copy of the donor’s will may be legitimate.’

In our view, a solicitor should review the executed power to see if it is valid and unrevoked (and ensure that there are no contrary conditions contained in the power) and whether it expressly allows the attorney to obtain a copy of the will. If so, then a copy may be provided. If not, then the solicitor should not simply hand over the copy without further verification from the principal-client herself.

If the solicitor determines (through his/her own personal enquiries) that the principal has in fact lost capacity, then this poses an ethical problem for the practitioner. In these circumstances, the duty of confidence over the client’s documents (as set out in Rule 9 of the Australian Solicitors Conduct Rules (‘ASCRs’)), including safeguarding the contents of the will, is the primary fiduciary duty of the solicitor, and must be balanced against the solicitor’s other fundamental ethical duties, namely the requirement to act in the best interests of the client as set out in rule 4.1.1.

If the attorney is not able to satisfy the solicitor that his request for a copy of the will is for a purpose for which the power of attorney has been granted, in our opinion, the solicitor should decline to provide it. However, if the detail requested by the attorney is obviously in the best interests of the principal (ie the client) then giving the required detail may be justified under rule 4.1.1.

There may also be some merit for a solicitor to suggest to a will maker, at the time of making a will, that the will maker provide a written direction to the solicitor that, in the event of losing capacity, a copy of the will could be made available to the named executor(s) upon his/her/their written request.

This can be a tricky area to navigate, and the proper action in any given case will turn on its facts. We recommend obtaining some advice before taking any steps.

Other useful resources:

Seniors’ Rights Victoria, Assets for Care: A guide for lawyers to assist older clients at risk of financial abuse (2012).

https://assetsforcare.seniorsrights.org.au/assetsforcare/wp-content/uploads/Assets-for-Care.pdf

Tip Box

Donna Cooper is an Ethics Consultant with ethics4lawyers and an Australian Legal Practitioner. Donna was previously the Manager of the Ethics & Professional Practice Department at the Law Institute of Victoria and Secretary to the Law Institute’s Ethics Committee.

Donna enjoys assisting legal practitioners with their ethical challenges. ethics4lawyers is available to provide telephone or written ethics advice to lawyers and conveyancers. Call us on (03) 9098 8644 or email admin@ethics4lawyers.com.au.

Indexation of maximum costs – Motor accident injury claims – NSW

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Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Probate Registry online applications – South Australia

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From Monday 26 November 2018, all applications for probate and letters of administration in the Supreme Court Probate Registry must be filed through CourtSA – the new electronic management system that is in the process of being introduced for all South Australian courts.

As at 15 October 2018, the probate registry no longer accepts paper applications. The Court has advised that any current paper transactions where a grant is not issued by 26 November 2018, will need to be re-lodged online through CourtSA.

It is expected that the online process will ultimately streamline applications and result in faster processing times, but there clearly will be some delay in the implementation phase, as no applications can now be filed until 26 November 2018.

Magistrates Court (Civil) Guide- review – South Australia

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The By Lawyers South Australian Magistrates Court (Civil) Guide has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

The extensive review was performed by our author Josephine Battiste, barrister at Mitchell Chambers.  As with all our authors, Josephine takes a practical approach, drawing on her considerable experience to cover all aspects of procedure and focus on practical tips that will help lawyers confidently represent their clients and successfully run civil matters in the Magistrates Court.

Highlights from the By Lawyers South Australian Magistrates Court (Civil) Guide include:

  • expanded commentary on settlement options, including Enforceable payment agreements, Pre-filing Alternative Dispute Resolution services in the Magistrates Court and Offers to consent.
  • new commentary on statutory actions;
  • new commentary and precedents in relation to service outside of South Australia;
  • expanded commentary on entry of default judgement, calculating interest on judgement debts and setting aside default judgement entered against a defendant;
  • expanded commentary on preparing and filing a defence;
  • new commentary and precedents on summary stay or dismissal of claim and striking out statement of claim, defence or reply; and
  • a new section on pre-trial processes covering discovery, the initial directions hearing and Alternative Dispute Resolution.

New precedents include a combined Offer and acceptance and an example List of documents for both plaintiff and defendant. All of the existing precedents in the guide have been reviewed to ensure they reflect current law and practice.

We invite you to explore this publication and to consider the wealth of assistance the guide offers for lawyers appearing for clients in civil matters in the Magistrates Court.

 

 

Criminal procedure amendments – VIC

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Various criminal procedure amendments introduced by the Justice Legislation Miscellaneous Amendment Act 2018 are now in effect, including:

Protection of certain witnesses from cross examination in committal hearings.

A committal hearing is not to be held in committal proceedings to which s 123 Criminal Procedure Act 2009 applies, namely cases involving a witness who:

(a) is a complainant in a proceeding that relates (wholly or partly) to a charge for a sexual offence; and

(b) was a child or a person with a cognitive impairment when the criminal proceeding was commenced; and

(c) made a statement a copy of which was served in the hand-up brief or whose evidence-in-chief or examination at a compulsory examination hearing was recorded and a transcript of the recording was served in the hand-up brief.

Such witnesses cannot be required for cross examination.

The By Lawyers Victorian Magistrates Court – Criminal guide has been updated accordingly.

Increased penalties for offences of violence against certain workers

Offences of violence alleged to have been committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, within the meaning of section 10AA of the Sentencing Act 1991, are now excluded from the list in Schedule 2 of the Criminal Procedure Act of indictable offences which can be tried summarily and custodial sentences for such offences are mandatory.

 

Magistrates’ Court Criminal Guide updated – VIC

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Our Victorian Magistrates’ Court Criminal guide has been updated, to make sure our Victorian subscribers who conduct criminal and traffic matters, or appear for applicants or respondents in Intervention Orders, in the Magistrates’ Court are right up to date with the law and practice.

The extensive review by our author, barrister Simone Tatas, includes recent amendments to both bail laws and sentencing for traffic offences. As with all our authors, Simone takes a practical approach, drawing on her experience as both a prosecutor and defence lawyer, to cover all aspects of procedure and focus on practical tips that will help practitioners confidently represent their clients and successfully run their matters in the Magistrates’ Court.

The commentaries have been updated in all of the guides in our publication – Criminal matters, Traffic matters and Intervention Orders. Highlights include:

  • bail amendments and the new ‘exceptional circumstances’ test;
  • programs the client needs to have completed before applying for re-licencing after a disqualification – taking into account whether the offence was committed before or after 1 April 2018;
  • steps to take prior to the commencement of a plea if imprisonment is a real possibility;
  • Community Corrections Orders as a sentencing option;
  • the application of the Behaviour Change program;
  • what to do when a client is in custody and an appeal needs to be listed;
  • the National Domestic Violence recognition Scheme;
  • The effect of ‘no electronic publication’ conditions in Intervention Orders.

Precedents include specific Retainer Instructions for Bail applications, Pleas and Mitigation, as well as for Criminal matters generally, Traffic matters and Intervention Orders. These have all been reviewed to ensure they reflect current law and practice.

We invite you to explore the matter plans in these guides and consider the wealth of assistance this publication offers for lawyers who appear in the Magistrates’ Court criminal jurisdiction.

Magistrates Court – Subpoenas – VIC

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New forms for Magistrates Court Subpoenas

The By Lawyers Victorian Magistrates’ Court – Civil guide has been updated to reflect recent changes to the Magistrates Court rules affecting subpoenas in civil matters.

The Magistrates’ Court General Civil Procedure (Miscellaneous Amendments) Rules 2018, which amend the Magistrates’ Court General Civil Procedure Rules 2010, came into effect on 15 October 2018.

These amendments make important changes to subpoena forms and processes in the Magistrates Court’s civil jurisdiction. The intention of the amendments is to harmonise Victoria with other Australian jurisdictions with regard to subpoenas.

Importantly, the existing form for Magistrates Court subpoenas, form 42A Subpoena to attend to give evidence, has been updated.

There are also two new forms for Magistrates Court subpoenas, forms – 42B, Subpoena to produce and 42C, Subpoena both to attend to give evidence and to produce.

For more information on Subpoenas generally, see the By Lawyers Reference Manual 101 Subpoena Answers located in the Reference Materials folder at the top of the matter plans in all By Lawyers litigation and criminal guides.

New precedents – Wills creating single testamentary discretionary trust

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Helpful new precedents have been added to all By Lawyers Wills publications for an individual, or a couple, to establish a single testamentary discretionary trust.

These precedents augment our existing precedents which create multiple testamentary discretionary trusts and make for faster and easier drafting where only one testamentary discretionary trust is required.

The new precedent, which is found in the Wills creating testamentary discretionary trust folder, was suggested by a subscriber. We love receiving feedback from firms who use our precedents and we are pleased to provide additional precedents where required.

 

By Lawyers will be at InfoTrack Connect18 E-Conveyancing Road-shows

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E-Conveyancing roadshows with Infotrack and By Lawyers 

econyevancing roadshow

InfoTrack is hosting 41 complimentary seminars throughout NSW, VIC, QLD and ACT showcasing the latest in integrated e-conveyancing solutions.

The By Lawyers team will be be attending and presenting at select venues throughout NSW and VIC.

New South Wales

17th of October – Sydney CBD

  • Kate Eason – General Manager Content, By Lawyers – Global
  • Angus Dawson  – Product Champion at By Lawyers

15th of November – Sydney CBD

  • Brad Watts – Managing Director, By Lawyers – Australia
  • Angus Dawson  – Product Champion at By Lawyers

Victoria

9th of October – 22 November –  All locations

  • Renowned expert property lawyer and By Lawyers author Russell Cocks will be attending all Connect18 road-show events hosted in Victoria.

Register here

  • Connect with members of the By Lawyers team
  • Be the first to see a live demo of the latest in e-Settlements solutions – Sympli
  • Learn how to make smooth transition to e-conveyancing
  • Have your questions answered by experts in the industry
  • Earn 1 complimentary CPD point
  • Network with your peers
  • Enter for a chance to win up to $5000 in prizes

 

 

Practice management – The key to a successful law firm

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Our Practice Management guide has undergone a substantial review to better address the challenges facing small law firms now. We have tailored our Practice Management Guide to provide assistance for all firms, whether start-up, breakaway or well established.

Our Practice Management guide contains commentary on running a successful legal practice, covering the following main areas:

  • How to perform a Legal Practice Health Diagnostic Check – a very useful tool for identifying existing strengths and areas where the firm can improve, or as a check-list for start ups.
  • Business planning for a law firm – including a SWOT analysis and environmental scan.
  • Ethics and professional responsibility – crucial to establishing reputation and managing risk.
  • The solicitor/client relationship – how to value and manage client relationships.
  • The employer/employee relationship – all of the essential information required for a firm to become an employer of choice.
  • Practice management – the essentials of managing the work performed by law firms including, matter and data management, financial management and trust accounting.

The By Lawyers Practice Management guide also contains many helpful precedents, such as:

  • Example costs disclosures.
  • Example invoices.
  • An example mission statement for a law firm.
  • A risk management plan.
  • Employment forms – including an application for employment and a new employee check-list.
  • An example asset register.
  • Forms for conducting file reviews.
  • Document safe custody records.
  • An example law firm client satisfaction survey.

Also included in the guide is our Reference Manual – 101 Policies and Procedures which covers most aspects of running a legal practice. Firms can seamlessly implement these policies and procedures as their own with a view to later development and enhancement, or use them as the basis for refreshing and enhancing existing policies and procedures already in place.

The By Lawyers Practice Management Guide also includes helpful articles including The 11 habits of highly successful small law firms by the Global Executive Chairman of LEAP, Richard Hugo Hamman.

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