What if my executor has lost mental capacity?

When you name executors in your Will, you hope that they will be fit to carry out their duties when the time comes.  But what if your executor is unable to carry out their duties due to illness?  Recently, the court has considered whether an executor’s attorney (appointed under a Lasting Power of Attorney) can step in and act as executor.

Legal precedent has been set* where, if the incapacitated executor has a Property and Financial Affairs Lasting Power of Attorney, the appointed attorney can apply to be the executor’s representative to carry out the execution of the Will.

For example:

  • Mr and Mrs Thomas have been married for 50 years. Mr Thomas unexpectedly passes away, leaving his whole estate to his wife.   Mrs Thomas has been named as sole executor in her husband’s Will.
  • Unfortunately, a few days later Mrs Thomas suffers a stroke – leaving her unable to speak or move.
  • Mrs Thomas has a Property and Finance Lasting Power of Attorney in place which names her niece, Sandy, as her attorney.  As soon as she becomes ill the LPA is activated meaning that Sandy can look after Mrs Thomas’ finances, her home and all her affairs.
  • However, there are some pressing matters with Mr Thomas’ estate and things that need to move forward. In her role as attorney Sandy can apply to the court to act as Mrs Thomas’ representative so that she can carry on as the executor for Mr Thomas’ estate.

The recent case was clear cut as there was only one executor and beneficiary to the Will of the deceased.  There may be further case law in this area.

If you wanted to read more about the applicable court ruling you can read HERE on the Society of Will Writers blog pages or if you wanted to talk about a LPA for yourself or a loved one contact me today for a free, no obligation chat on amanda@alhlegal-willwriters.co.uk or 0115 8780417