Enduring powers of attorney are very important. We recommend these to all our clients, regardless of their age or circumstance. It is now a requirement that anyone signing an enduring power of attorney (the Donor) receives legal advice before they sign. However, the person being appointed as the attorney doesn’t receive any legal advice at all. If you have been appointed an attorney by a family member or friend, then this article will provide you with some guidance as to what that role entails.
As an attorney, your job is to act for the donor and make decisions for them when they cannot make decisions themselves. There are two kinds of enduring power of attorney – property, which relate to the Donor’s assets, and personal care and welfare, which relates to the Donor themselves. The role could include helping the Donor pay their bills, selling their home, running their investments, finding an appropriate rest home or care facility or liaising with doctors.
When acting as an attorney you must:
- Consult with the Donor, any other attorney and any other person the Donor nominates;
- Provide information to any person the Donor nominates;
- Encourage the Donor to retain their independence and develop their own competencies.
As a property attorney, you must:
- Keep and maintain financial records of all transactions entered into if the Donor is mentally incapacitated;
- Provide financial support from the Donor’s assets to the personal care and welfare attorney;
- Use the Donor’s assets to promote and protect the Donor’s best interests.
- Use the Donor’s assets for the benefit of the Donor, unless otherwise specified in the enduring power of attorney. You cannot use the Donor’s assets to benefit yourself or someone else.
As a personal care and welfare attorney, you must:
- Act in the best interests of the Donor;
- Rely on a medical certificate unless the certificate confirms the Donor has ongoing mental incapacity;
- Give consideration to the financial impact of your decisions.
As an attorney you cannot act contrary to any conditions or restrictions set out in the enduring power of attorney. Furthermore, as an attorney for personal care and welfare you cannot make decisions about entering into or ending a marriage or civil union, nor can you refuse consent to standard medical treatment or a procedure intended to save the Donor’s life.
Your actions as an attorney can be reviewed by the Court. Such an application can be brought by the Donor, a relative, a social worker, a medical practitioner, the manager of a care facility (if they are a resident there) amongst others.
Furthermore, if you do not meet the obligations imposed on you then you could be liable to fines.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
