Can my Attorney under my Power of Attorney make, amend, or see my Will?

In New South Wales, the powers and limitations of an attorney acting under a Power of Attorney (PoA) are governed by the Powers of Attorney Act 2003 (NSW). This legislation outlines the scope of authority that an attorney may have, as well as specific restrictions on their powers. One of the critical areas of concern is whether an attorney can make, amend, or see the Will of the principal.

Making a Will

Under the Powers of Attorney Act 2003 (NSW), an attorney does not have the authority to make a Will on behalf of the principal. The creation of a Will is a highly personal act that reflects the testamentary intentions of the individual. The law recognises that only the principal can make a Will, as it is a document that expresses their wishes regarding the distribution of their estate upon death. This restriction ensures that the principal’s true intentions are preserved and prevents potential abuse of power by the attorney.

Amending a Will

Similarly, an attorney under a PoA cannot amend or alter the principal’s existing Will. Any changes to a Will must be made by the principal themselves, provided they have the requisite mental capacity to do so. If the principal lacks the capacity to amend their Will, the only legal avenue available is to apply to the Supreme Court of New South Wales for a statutory Will. A statutory Will is a Will made by the court on behalf of a person who lacks testamentary capacity. The court will consider the evidence and make a Will that reflects what the person would have likely wanted if they had the capacity to make one.

Seeing the Will

The question of whether an attorney can see the principal’s Will is more nuanced. The Powers of Attorney Act 2003 (NSW) does not explicitly grant an attorney the right to access the principal’s Will. However, if the principal has given specific instructions or consent for the attorney to access their Will, then the attorney may be able to do so. In practice, this means that the principal can include a clause in the PoA document that authorises the attorney to view the Will or some other authorisation eg an instruction left with the PoA. Without such explicit authorisation, the attorney does not have an automatic right to access the Will.

Practical Considerations

While the law sets clear boundaries on the powers of an attorney concerning the principal’s Will, practical considerations also come into play. For instance, if the principal is incapacitated and the attorney needs to understand the principal’s testamentary intentions to manage their affairs effectively, it may be prudent for the principal to provide the attorney with access to the Will. This can be done by including a specific provision in the PoA document, some other authorisation or by giving the attorney a copy of the Will while the principal is still capable.

Conclusion

In summary, under the Powers of Attorney Act 2003 (NSW), an attorney cannot make or amend a Will on behalf of the principal. The creation and alteration of a Will are personal acts that must be carried out by the principal themselves. However, an attorney may be able to see the principal’s Will if explicit authorisation is provided . These restrictions are in place to protect the principal’s testamentary intentions and prevent potential misuse of the attorney’s powers. It is advisable for individuals to seek legal advice when drafting a PoA to ensure that their wishes are clearly articulated and that the attorney’s powers are appropriately defined.

If you would like to make changes to your current PoA, or discuss a new PoA, please contact Sutherland Shire Solicitors, Solari and Stock on 02 8525 2700 or click here to request an appointment with one of our Wills and Estates Team members, Michael Solari, Suna Ozcan, Rebecca Exley, and Valentina Abouzeid.

Article by Rebecca Exley.
Photo by Álvaro Serrano on Unsplash