A recent case has ruled that an executor (the person responsible for administering a deceased person's estate) can be replaced by their attorney for the purpose of the estate administration if they have lost capacity.
And English case in point
Mr John Parker died in March 2016, with his wife Margaret Parker and his niece appointed as his executors under his Will. At her husband's death, Mrs Parker was in full time care as a result of her advancing dementia. Prior to losing capacity as a result of her dementia, however, Mrs Parker had granted a power of attorney in favour of her daughter, enabling her to deal with her affairs on her behalf.
Mr Parker's niece, in her role as an executor, subsequently applied for probate to Mr Parker's estate. However when it appeared that the estate would potentially become contentious, the niece was reluctant to become involved and Mrs Parker's daughter (as her attorney) sought to deal with the estate on her mother's behalf.
The court then considered whether Mrs Parker's daughter, as part of her duty as attorney to look after her mother's financial affairs, could act in her mother's place in administering the estate.
The judge held that Mrs Parker's interest in her husband's estate did come within the scope of her own property and financial affairs and that dealing with this was therefore within her attorney's powers under the power of attorney in her favour – which provided wide powers. However, a material aspect of this decision was the fact that Mrs Parker was not only an executor of her husband's estate, but also the sole beneficiary.
The position in Scotland
This was in fact a case of the England and Wales High court and therefore is not applicable in Scotland. Under Scots law, the position is in fact quite different.
In Scotland, a person cannot act as executor if they have lost capacity (or become "incapax"). An individual appointed as executor may of course have put a Power of Attorney in place prior to their loss of capacity, which may provide the power for their Attorney to decline to act as executor on their behalf. If such a power is included in the Power of Attorney, then such a declinature would be valid. However, in Scotland an Attorney cannot apply for Confirmation (the Scottish form of probate) to an estate on behalf of the incapax executor.
A guardian of an incapax executor may however have power to act for the incapax in connection with the administration of the estate (to decline office on their behalf or to act as executor on their behalf). There are also other options available to proceed with administration of an estate where an executor has lost capacity.
Importance of having more than one executor in your Will
It remains to be seen whether in the future a similar decision may be made in Scotland, enabling an executor's attorney to act on their behalf in relation to the estate administration. However, with the current position, it is always advisable to appoint more than one executor in your Will, provide for alternative appointments in the event that an executor becomes unable to act and of course to keep your Will under regular review.
Get in touch - we're here to help
Harper Macleod's Private Client team can help you in preparing your Will and in dealing with complex estates including those involving incapax executors.
Elgin: 01343 542623
We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland - and working from home, ready to help in person or over the phone or on a zoom call.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.