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Sunday, January 10, 2010

Can Attorney under Power of Attorney make a new Will for the donor?

Recently I was asked an interesting question by a man who had been appointed as the Attorney under his father's Enduring Power of Attorney. The father has gradually been losing his mental capacity and the Enduring Power of Attorney has been brought into effect to allow the son to act on behalf of the father.

His question was whether he could make a new Will on behalf of his father. He thought that perhaps he could because the Enduring Power of Attorney contains the standard wording that the Attorney "can do anything that the donor can legally do by Attorney". That phrase seems to get a pretty wide interpretation by some people acting as Attorney because it sounds like exactly what it is, a catch-all type of phrase.

The answer to the question is no, an Attorney can't make a new Will for the person who appointed them as Attorney. The act of making a Will is considered in law to be one that is a combination of intentions, plans, factual knowledge and wishes that only the person himself would know. In other words, only you can make a Will for you, disposing of your property after your death.

In New Brunswick it is possible for someone acting as a trustee for an incapacitated adult to make a Will for that person, but that Will is not valid until it has been confirmed by the court.

I asked the man who was acting as Attorney why he wanted to make a new Will for his father and he replied that he thought a different distribution of the father's estate would be more fair to him and his siblings. Unfortunately for the son, it isn't up to him to decide what the father says in his Will. Also unfortunately, it isn't unusual for children of ageing parents to think they know better than the parent what is "fair". Over the years I've met several families in which the children have overstepped their legal boundaries by ignoring what is in the parent's Will or dealing with the parent's assets during the parent's lifetime in such a way that there is little left under the parent's Will.

They get away with this because nobody notices or nobody speaks up. In the cases where they are caught acting in a way that is better for themselves than it is for the parent they supposedly represent, the court has a range of remedies that can be used.

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