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Advice for Attorneys

The Powers of Attorney Act 2014 sets out the powers and responsibilities of a person(s) appointed as an attorney under an enduring power of attorney.

The effect of an enduring power of attorney is to have the person (the principal) appoint someone else (the attorney(s)) to make decisions for them.

Powers

The document will specify the particular responsibility of the attorney. It will be to make decisions about financial and property matters, or personal matters, or both.

The powers with respect to “Financial matters” are broad and include for example, withdrawing money; paying expenses; undertaking property transactions, etc. The attorney may also attend to “legal matters” relating to the principal’s financial and/or business affairs (as appropriate), which may include acting in court matters or executing court documents etc. “Personal matters” relate to the principal’s personal or lifestyle affairs, and examples include decisions as to where the principal lives; with whom the principal associates; health care matters, daily living issues etc.

Decisions where there is more than one attorney

The document may provide for more than one person to act as attorney. It will also specify where there is more than one attorney, whether they are to act jointly (meaning they must make decisions and sign documents together), or can act independently of each other.

Duties

The specific duties of the attorney(s) are set out in the Act. In overall terms the attorney(s), when making decisions or taking action, must act in the best interests of the principal. In so doing, they must act in a way that is the least restrictive of the principal’s ability to do things for them self. They must, where appropriate, encourage the principal to participate in decision making.

The most obvious obligations of an attorney(s) are the duties to act honestly, in good faith, exercising reasonable skill and care and, importantly, to avoid acting where there is conflict between the principal’s position and that of the attorney.

It is also critical with respect to financial and property matters that the attorney keeps full and accurate records and accounts of all transactions and dealings. The attorney must keep any property and money belonging to the principal separate from the attorney(s) own property, bank accounts, etc.

Advice

The purpose of this document is to set out broad principles in relation to the attorney(s) powers and duties. From time to time, specific issues can arise as to the appropriate conduct to be undertaken by the attorney. If in doubt contact us for advice.

For further advice or assistance

Contact Peter Wilson on 03 5337 0252 or pwilson@nevetts.com.au

The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.