Recently, an enquirer contacted me to ask if they could access their mother’s Will, as they were acting as her attorney under an Enduring Power of Attorney. An Enduring Power of Attorney is a very important and complex document, and acting as an attorney should not be entered into lightly. When making an Enduring Power of Attorney, you can set certain terms for the attorney’s power, but the Powers of Attorney Act 1998 (Qld) and certain cases also provide guidance for what attorneys can or cannot do.
Can my attorney access a copy of my Will?
Section 81(1) of the Powers of Attorney Act 1998 (Qld) states that “An attorney has a right to all the information that the principal would have been entitled to if the principal had capacity and that is necessary to make, for the principal, informed decisions about anything the attorney is authorised to do.” Reviewing the principal’s Will may be relevant to the attorney in the following ways:
- Giving away, selling or disposing of certain property if the principal needs to move into a nursing home. It would be important for the attorney to be aware if any of these items are specifically gifted in the principal’s Will, so that those gifts do not fail through the actions of the attorney. I have previously looked at this issue here; and
- If the attorney is considering taking action that may restructure the principal’s affairs and doing so would impact on the principal’s intentions in their Will.
What does my attorney need to do to obtain a copy of my Will?
A solicitor at the firm which holds the principal’s Will will need to sight either the original Enduring Power of Attorney or a certified copy. They may then ask a series of questions to ascertain whether or not it is appropriate for them to provide a copy of your Will to the attorney, including:
- If the principal still has capacity, can they contact the firm to give authority for the attorney to receive a copy of their Will?
- If the attorney’s power is only to commence if the principal has lost capacity, can the attorney provide evidence that the principal has lost capacity?
- Is there evidence that the Enduring Power of Attorney has not been revoked?
- Why does the attorney require a copy of the Will?
Can my attorney obtain my original Will?
If your original Will is stored with a private law firm or with the Public Trustee, it cannot be released to your attorney but they can tell your attorney whether or not they hold an original Will for you.
I’m acting as an attorney and need to obtain a copy of a Will. What should I do?
If you would like advice regarding your role as an attorney or acting as an attorney, you should contact an experienced Wills and estates solicitor.
Please contact me should you require assistance.