By Lawyers is pleased to be able to share with you Donna Cooper’s article, Should you hand over a copy of a will to an attorney under power?, published in the Reference material folder in our Will, Powers and Estates VIC publications.

Donna’s article commences:

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 a 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?

Donna’s article considers:

• the duty of confidentiality a solicitor owes to the principal;
• the application of the Powers of Attorney Act 2014 (Vic) to various scenarios;
• the options available to a solicitor when approached by an attorney seeking access to the principal’s will; and
• guidance including the 2013 Succession Laws Report from the Victorian Law Reform Commission and Ethics Committee Ruling R4839, published in 2015 by the Law Institute of Victoria’s Ethics Committee.

Donna Cooper is an Ethics Consultant with ethics4lawyers and an Australian legal practitioner. Donna’s very practical and considered article first appeared in the Institute of Legal Executives September-October 2018 journal, The Legal Executive.