Your will and your records in your LPA

Written by Oliver Asha, Solicitor & TEP
Published: 26 October 2026

If your attorney sells something you have left to someone in your will, that gift can fail. The law calls this "ademption". The person you chose may get nothing in its place. These clauses help your attorneys see your will before they sell, and get the records they need to make good decisions.

This guide is one of a series on the preferences and instructions our LPAs offer.

The will clauses: check the will, and see a copy

What they do. There are two clauses, both in the property and financial affairs LPA.

  • Considering wishes in my will before disposing of personal items. This is a preference. Before your attorneys sell or give away something, they look at your will and any codicil. A codicil is a document that changes a will. If the item is left to someone there, they take that into account.
  • Disclosure of my will. This is an instruction. It allows whoever holds your original will, such as a solicitor or a will storage company, to give your attorneys a copy. That covers the will and any other document about what happens to your estate. The original stays where it is unless the Court of Protection orders otherwise.

Why they help.

  • Your attorneys know what they are dealing with. They cannot weigh up your gifts if they have never seen your will.
  • The holder knows it may hand over a copy. Solicitors must keep a client’s affairs private unless the client agrees. This clause is your written agreement.
  • Your original will stays safe. A copy is enough for your attorneys. The signed original is what your executors will need after your death.
  • Your gifts get a fair hearing. If there is a choice of what to sell, your attorneys can think about who would lose out.

The records clauses: medical and care records

What they do. There is one in each type of LPA. Both are instructions. They allow doctors, health bodies, local councils and registered care providers to give your attorneys copies of your records.

  • In the property and financial affairs LPA, the records are for decisions about paying for your care.
  • In the health and welfare LPA, the records are for decisions about your health and welfare.

Why they help.

  • Care decisions need facts. Whether to sell your home to pay for a care home depends on how likely you are to go home again.
  • It saves delay. A busy surgery or care home can see at once that you wanted your attorneys to have this.
  • It keeps each LPA to its own job. The money LPA only uses records for money decisions. The health LPA uses them for health and welfare.

If you hold digital records or accounts, see also our guide to digital assets in your LPA.

What the law and official guidance say

Attorneys cannot change your will. The Office of the Public Guardian’s guide says plainly that you can’t tell an attorney to change your will. So your will stays as it is. But your attorneys can still affect it, by selling what it gives away.

Your wishes count. Attorneys must act in your best interests. Under section 4(6) of the Mental Capacity Act 2005, they must consider your past wishes, in particular, any relevant written statement made by him when he had capacity. Your will, and a preference asking them to read it, are both written statements of that kind.

The law protects gifts from deputies’ sales, not attorneys’. A deputy is someone the Court of Protection appoints when there is no LPA. Schedule 2, paragraph 8 of the Mental Capacity Act 2005 says that where the court’s powers are used to sell your property, a beneficiary can take the same interest in whatever replaces it. That rule only covers sales made under the court’s own powers. In Rokkan v Rokkan (2021) the High Court said the statutory rule is confined to dispositions of deputies and is no more general [R87]. A sale by your attorney is not covered.

Solicitors keep wills confidential. The Solicitors Regulation Authority’s code says: You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. The will disclosure clause records your consent.

Attorneys should be able to see relevant medical records. Official guidance for the NHS says an attorney under either type of LPA should be able to access relevant medical records of the vulnerable adult. It explains why: attorneys will likely be unable to do so without P’s medical records. Its example is a son deciding whether to sell his father’s house to pay care home fees. The guidance says health professionals should disclose any relevant reports they hold to help him decide.

The same guidance tells health professionals to check that the LPA does not say records must be kept from the attorney. So what you write in your LPA is read. A clear instruction saying yes removes any doubt.

Do not mix the two LPAs. The official guide warns: don’t add health and welfare instructions to a property and financial affairs LPA. That is why each of our records clauses is tied to the job of its own LPA.

One older law does not help while you are alive. The Access to Health Records Act 1990 now only gives access to the records of a patient who has died. An attorney’s request is made under the LPA and data protection law instead.

Without these clauses

  • Your attorney may sell blind. They may not know a ring, a painting or a house is left to someone. A gift can fail without anyone meaning it to.
  • The will holder may say no. A solicitor may want proof of your consent, or a court order, before handing over a copy.
  • Records may be slow to arrive. A care home or surgery may hold back while it checks what your attorney is allowed to see.
  • Families may fall out. One child may lose a gift, while the money goes into the share everyone splits.

What happened in Banks v National Westminster Bank

The judgment in Banks (2005) is not on the free official archive. So we rely on how two later High Court judgments describe it. Both read it in full and followed it.

A mother made a will leaving her property to her daughter. The rest of her estate, called the "residue", went to the daughter and her son equally [M221]. The mother then lost mental capacity. Her daughter, acting under an enduring power of attorney, sold the property [R79]. An enduring power of attorney is the older kind of power that LPAs replaced. The sale was lawful and properly authorised [M221].

Almost all of the money from the sale was still there, invested in bonds [M221]. Because the mother had lost capacity, she could not make a new will after the sale [M221]. Then she died.

The judge decided that the gift of the property had failed. The money from the sale fell into the residue, to be shared equally with her brother [M222]. He rejected the argument that a gift survives if the person who made the will did not know about the sale [R79].

In 2021 the High Court explained the rule in Rokkan v Rokkan: ademption does not depend on the state of mind of the testator [R84]. In 2026 the High Court summed up Banks again:

"A lawful dealing with the subject matter of a specific bequest using a LPA will adeem that bequest even if the proceeds of dealing are still identifiable in the hands of the testator and even where there is no fault by the beneficiary" [M231]

In that 2026 case, both barristers told the judge they thought Banks was clearly correct [M221].

The lesson. A sale by your attorney can be honest and lawful and still undo a gift in your will. The law will not step in for them as it can for a deputy. Your attorneys can only take your gifts into account if they know what your will says.

For more on gifts your attorneys can make while you are alive, see our guide to gifts and charity in your LPA.

Preference or instruction?

Asking your attorneys to consider your will is a preference. They must still act in your best interests, and sometimes a sale will be needed to pay for your care. The disclosure clauses are instructions, because they give clear permission that others can rely on. Our questionnaire uses the right form for each.

Let your attorneys see the whole picture. Our LPAs include these clauses, so your attorneys can see your will and the records they need. £120 per LPA including VAT, with a solicitor checking everything before you sign.

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This article is for general information and is not legal advice. If you are an attorney thinking of selling something left in a will, please get in touch.

Sources

Oliver Asha, Solicitor and TEP, founder of Capacity Vault

Oliver Asha

Solicitor · TEP · Founder of Capacity Vault

Oliver is a Solicitor of England and Wales (SRA number 372772) and a Trust and Estate Practitioner (TEP). He qualified in 2006 and founded Capacity Vault Limited, the company behind both Capacity Vault and Make a Will. He also founded Make a Will Online and Digilegal Trustees. He built Capacity Vault after watching his own family struggle to arrange a capacity assessment. He is the named author of the guides and articles on this site.

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