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.
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:
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 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.
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.