Attorneys’ Conditions in an Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a document that gives someone (the Attorney) the power to make personal and financial decisions on behalf of another person (the Principal). The power arises when the Principal loses their decision-making capacity.
Being an Attorney comes with significant responsibilities. Attorneys’ Conditions in EPAs aim to ensure that Attorneys act appropriately in the role.
If an Attorney fails to comply with the conditions attached to the role, they may have committed for an offence, may have to pay compensation, and could be removed from their position.
This article lists out some of the key responsibilities and conditions attached to being an Attorney.
Conditions
Firstly, an Attorney should be eighteen years or older and cannot be a paid carer or health care provider of the Principal.
If there is more than one Attorney, there must be regular consultation among the Attorneys, with the decision making process adhering to the requirements set out by the Principal. For example, if the Principal has requested that the Attorneys make their decisions jointly then there must be a unanimous agreement between the Attorneys before a decision can be made.
Additionally, an Attorney must be aware of both the general and specific responsibilities that come with the role.
General responsibilities
An Attorney must act honestly and with reasonable care when exercising their power. In doing so, the Attorney should follow the general and healthcare principles from the Powers of Attorney Act 1998.
These principles aim to ensure that the Attorney does not abuse their power, and require the Attorney carefully consider the Principal’s situation when using their power.
For example, the Attorney should ensure that there is conclusive evidence of the Principal’s loss of capacity before making a decision on their behalf. If the Principal still has partial capacity, the Attorney should recognise the Principal’s right to partake in decision making.
The Attorney should take the Principal’s culture, values and relationships into account when making decisions, and ensure that those decisions fit with the Principal’s characteristics and needs.
The Attorney should also respect the Principal’s right to confidentiality of information.
Health care responsibilities
Often, the decisions that Attorneys are required to make will relate to the Principal’s health care. For example, deciding what medical treatment the Principal should receive.
When making these types of decisions, an Attorney should ensure that the Principal’s health or well-being is the primary consideration, and that the Principal’s rights are restricted as little as possible. An Attorney should also take the Principal’s views and wishes into account when making health care decisions, as well as taking into account the information provided by the Principal’s health-care provider.
Financial responsibilities
If an Attorney makes investments on behalf of the Principal, these must be authorised investments as defined in the Trusts Act, or must be approved by the Court.
Specific responsibilities
An Attorney has a number of duties that require the careful managing and recording of their actions in relation to decision made on behalf of the Principal.
Namely, an Attorney must keep reasonable records of any dealings or transaction made on behalf of the Principal, and should always keep their property separate from the Principal’s property.
Decisions should not be made that bring an Attorney’s interests into conflict with the Principal’s interests unless the decision was authorised by the Principal in the EPA, or unless it provides for someone that the Principal would have been likely to provide for such as their child.
The Principal’s property should not be given away unless the Principal would have been likely to do so, and finally, an Attorney has the power to decide whether the Principal’s dependants should be provided with maintenance by the Attorney.
Given the significant responsibilities and duties attached to the role of Attorney, someone in this position may wish to seek advice on how to use their power appropriately. If you have any questions arising from this post, please contact one of our expert estate planning lawyers by calling us on 07 3106 3016 or contacting us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.
