When someone loses the mental capacity to make decisions for themselves, their attorney will often step in to manage their finances and organise for the individual to live in an aged care facility.
When this happens, generally the first decision the attorney has to make is how to fund the individual’s entry into aged care. Depending on the extent of the power provided to the attorney by the individual, the attorney may decide whether any of the individual’s assets need to be sold to meet the costs of that individual’s care.
So, what happens if the attorney decides to sell assets that the individual has specifically gifted under the terms of the Will? And how can an attorney make the best decision for the individual in light of the terms of their Will – particularly when it was the individual’s intention to gift that asset to someone upon their death?
Firstly, an attorney must find out whether they have the right to obtain a copy of the individual’s Will. As a general rule, a Will is treated as a financial document. If the attorney has the power to make financial decisions on the individual’s behalf, and that power has commenced, the attorney has the right to a copy of the individual’s Will. This includes obtaining a copy from any other individual, organisation of law firm that holds the original Will: upon meeting those organisations’ requirements for the attorney’s photo I.D. and a certified copy of the Enduring Power of Attorney etc.
Once a copy of the Will is obtained, the attorney must consider whether the individual has specifically gifted any of their assets under the terms of that Will. Where possible, an attorney should try to avoid selling or disposing of assets that are specifically gifted in the Will. This is because any assets dealt with by an attorney during the individual’s lifetime will not be an asset of their estate upon their death – and what happens to the gift of that asset under the Will is the subject of conjecture given two conflicting decisions by the Supreme Court of Queensland.