Question to the Ministry of Justice:

To ask the Secretary of State for Justice, whether he plans to improve oversight mechanisms for (a) executors and (b) attorneys under Lasting Powers of Attorney.

A wide range of safeguards are available in legislation to hold executors accountable for the performance of their duties in administering the estate of a deceased person. Protections for beneficiaries if executors are incapable of fulfilling their duties or abuse their positions include:

• Renunciation – an executor is able to renounce their office if they find the role too difficult or their health is too poor, work commitments too great or it is impractical (for example they live abroad).
• Capacity – a person who lacks mental capacity to act as an executor cannot do so while such incapacity lasts.
• Passing over – Section 116 of the Senior Courts Act 1981 empowers courts to pass over an executor where it is considered necessary or expedient and appoint an administrator.
• Citation to accept or renounce a grant – the courts can summon an executor where they have failed to act to apply for probate or renounce their office and if they do not appear their rights as an executor cease.
• Citation to take probate – an application to court where an executor has taken some steps without formalising their role.
• Inventory and Accounts – an application can be made by a beneficiary to the court to require an executor to provide an inventory and account of their administration of an estate.
• Removal – applications can be made under section 50 of the Administration of Justice Act 1985 to remove and replace an executor after probate where there are grounds to do so.
• Fraud – allegations of executors committing criminal offences such as fraud can be investigated by the police.

Given the wide range of safeguards, and the checks and balances the legislation provides (given the challenges faced by and onerous duty imposed on executors) the Government has no plans to reform the current mechanisms for holding executors and other personal representatives to account.

Attorneys appointed under a Lasting Power of Attorney (LPA) are chosen by the donor themselves, reflecting their trust and personal decision about who should act on their behalf. The Office of the Public Guardian (OPG) ensures the LPA is valid before registering it and can investigate concerns raised with them about an attorney’s conduct. However, the OPG does not have statutory powers to proactively monitor attorneys where no concerns have been reported.

There are also important safeguards built into the LPA process, such as the certificate provider who plays a key role in confirming that the donor understands the arrangement and is not under undue pressure. There is also a statutory waiting period prior to registration, to allow for objections against registration to be raised. These measures, alongside the donor’s choice of attorney, provide a level of security within the current framework.

Looking forward, the OPG and the Ministry of Justice are progressing a modernisation project that aims to increase safeguards and improve access to LPAs, which will be achieved by introducing a digital channel to make and register an LPA, while improving the existing paper channel. This will make LPAs easier to understand, and break down barriers to starting an LPA.