Being an attorney

If you are appointed as an attorney, you have certain key obligations you must meet.

Act in the donor’s best interests

Property: You must use the donor's property to promote and protect their best interests, and encourage them to develop the competence to manage their own property affairs. You must keep records of each financial transaction entered into under the enduring power of attorney while they’re mentally incapable.

Personal care and welfare: You must promote and protect the welfare and best interests of the donor. You need to encourage them to understand decisions relating to their care and welfare, and encourage them to act on their on behalf wherever possible. You must also help them integrate into the community – for example, by contacting organisations who provide support and recreational activities. 

Duty to consult

You must, as far as is practicable, consult both the donor and any person that has been specified in the enduring power of attorney. An attorney for property should always consult with the donor unless there is a medical reason preventing their understanding.

If separate attorneys are appointed for property and care and welfare, both attorneys must consult regularly to ensure the donor's interests are not prejudiced through any breakdown in communication between them. The property attorney must give the personal care and welfare attorney any financial support required to carry out their duty. The care and welfare attorney must consider the financial implications of any decision in respect of the donor's property.

Provide information on exercise of powers

You must provide information when requested if the person making the request is a lawyer appointed by the Family Court or is specified in the enduring power of attorney.

Attorney's power to benefit

While a donor is "mentally incapable" an attorney can only act to benefit the donor, unless it is provided for or authorised by the Family Court.  When creating the power of attorney a donor can specify provisions for when an attorney can benefit themselves or others. They may, for example, wish to authorise the attorney to assist a child with a particular problem.

The attorney is able to recover out-of-pocket expenses reasonably incurred and professional fees. Receipts or other reasonable evidence must be provided.