An EPOA is a legal document that allows a person (the ‘principal’) to choose another person (the ‘attorney’) to make decisions on their behalf.
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An appointment as someone’s attorney under an Enduring Power of Attorney is a legal position of responsibility and trust.
To protect the person’s interests (and make sure you don’t get yourself into trouble), it’s essential that you clearly understand your duties and responsibilities as an attorney.
The Enduring Power of Attorney document states what you can and cannot do, but if you’re unsure about a decision, get professional advice – don’t guess.
Being appointed as an attorney under an Enduring Power of Attorney (EPOA) is a significant responsibility. It means you are trusted with the authority to make important decisions for another person. This article explains the key duties and responsibilities of an attorney, offering guidance on how to carry out this role properly.
Understanding these duties and responsibilities is essential for protecting the older person’s interests and ensuring you do not find yourself in trouble.
Understanding the Enduring Power of Attorney document
An EPOA is a legal document that allows a person (the ‘principal’) to choose another person (the ‘attorney’) to make decisions on their behalf.
Unlike a general power of attorney, an EPOA remains valid if the principal later loses the ability to make their own decisions (sometimes called their ‘capacity’). This long-lasting (enduring) nature highlights how important the attorney's role is, as they may be required to manage the principal's affairs during a time when the older person is most vulnerable.
The EPOA document itself clearly states what powers an attorney has. It is crucial for the attorney to read this document carefully to understand the specific powers it gives them and any limits or conditions the principal has set, including any wishes or preferences.
Duties and responsibilities of an attorney
The laws governing powers of attorney across Australia set out several important duties for attorneys. Following these duties is not only good practice, it's a legal requirement. If an attorney fails to meet these duties, it can lead to serious problems, including being personally responsible for any loss.
Duty to act in the principal's best interests
This is one of the most important duties of an attorney: they must exercise their power honestly and carefully to protect the principal's interests. Acting in the ‘best interests’ means considering everything that affects the principal's wellbeing – their money, their personal life and their social connections. This duty means the attorney must carefully consider what would genuinely benefit the principal, rather than what might be convenient or beneficial to themselves or other people.
When making decisions, an attorney must consider:
the principal's current wishes: if the principal can still make decisions, their wishes must be respected
the principal's past wishes: if the principal has lost the ability to make decisions, the attorney must consider any wishes the principal expressed when they could make decisions, especially those written down in the EPOA or other advance care planning documents
the principal's values and beliefs: decisions should match the principal's known values, cultural background and religious beliefs
the need to maintain the principal's quality of life: this includes making sure they have suitable accommodation, health care and opportunities to socialise
the need to protect the principal from harm, neglect, abuse or exploitation: this is a critical part of the duty to keep the principal safe.
Duty to exercise power honestly and with reasonable diligence
An attorney must act with honesty and with the same level of care that a sensible person would use when managing their own money and life.
Being reasonably diligent means taking appropriate steps to gather information, seek advice when necessary and make informed decisions. It also means avoiding unnecessary delays in looking after the principal's needs.
Duty to keep reasonable records
An attorney is in a position of trust and must be able to explain their actions. Keeping accurate and complete records of all monetary transactions and decisions made on behalf of the principal is crucial. This includes:
detailed financial records, such as receipts, bank statements or investment reports
records of important personal decisions, such as health care choices or changes in living arrangements
copies of letters or emails with third parties such as banks, doctors and care providers
notes of discussions with the principal or family members about decisions.
These records show that the attorney has acted properly, and they can be very important if the attorney's actions are ever questioned by family members, relevant administrative tribunals or courts, or other interested parties.
Duty to avoid conflicts of interest
An attorney must not put themselves in a situation where their personal interests clash with those of the principal. This is a strict rule. For example, an attorney generally cannot:
buy the principal's property, even at market value, unless the EPOA specifically allows it or a relevant administrative tribunal or court gives permission
use the principal's money or assets for their own benefit or the benefit of another person, unless the EPOA clearly permits it (e.g. for reasonable payment for their work or to cover their expenses)
make gifts from the principal's property, except for reasonable gifts to family members or friends that match the principal's past giving habits, or as specifically allowed by the EPOA or a relevant administrative tribunal or court.
If a possible conflict arises, the attorney should seek legal advice or ask a relevant administrative tribunal or court for instructions.
Duty to not mix your assets
An attorney must keep the principal's money and property separate from their own. This means having separate bank accounts for the principal's money and never mixing it with the attorney's own personal money.
Mixing funds makes it difficult to track transactions, can lead to accusations of taking money improperly, and breaks the trust placed in the attorney.
Duty to act within the scope of the EPOA
The EPOA document clearly sets out what the attorney is allowed to do. They must not act beyond the powers given to them.
For instance, if the EPOA only gives power over financial matters, the attorney cannot make decisions about the principal's health care. Similarly, if the EPOA states that certain powers only start when the principal loses the ability to make decisions, the attorney cannot use those powers before that condition is met.
Any actions taken beyond what the EPOA allows might not be legally valid and could make the attorney personally responsible for any problems.
Consider the principal's wishes
Even when the principal has lost the ability to make decisions, the attorney must, as much as possible, consider the principal's wishes as they were expressed when they could make decisions. This includes any advance health directives, statements in the EPOA, or other documented or reliably communicated preferences about their care, lifestyle or financial management.
The attorney's job is to make decisions on the principal's behalf and try to make the same choices the principal would have made, rather than make decisions based on the attorney's own preferences.
Duty of care
An attorney must act with the same level of care, effort and skill that a sensible person would use when managing their own life and money. This means they have a responsibility to seek professional advice when necessary, especially for complex financial or legal matters.
For example, if managing a significant investment portfolio, a sensible attorney would consult with a financial adviser. If dealing with property transactions, legal advice would be essential.
Be accountable
An attorney must be able to explain their actions to the principal and, in some situations, to relevant administrative tribunals, courts and other people who have a legitimate interest. This means being ready to explain and justify decisions they have made and to provide access to records when legitimately requested.
Administrative tribunals and courts across Australia have wide powers to check an attorney's actions and give the attorney instructions. They can even cancel an EPOA and appoint a new attorney or administrator if an attorney is not following their duties.
Supported decision-making: empowering the principal
While an EPOA gives an attorney the power to make decisions for the principal when they can no longer make them, a fundamental principle in Australian law is to help the principal participate in decisions about their own life where possible.
This is where the approach of supported decision-making by the attorney becomes very important. Supported decision-making is a process of offering help, information and communication support to enable the principal to participate in the decision-making process where appropriate.
This method emphasises independence and dignity, recognising that decision-making is not an 'all or nothing' scenario. Many individuals can still make choices or take part in the decision-making process if they have the right support.
Attorneys should only make decisions for the principal when all supportive measures have been explored and the principal can’t make that specific decision, even with the appropriate assistance.
Practical steps for attorneys
Beyond the legal duties, several practical steps can help an attorney fulfil their role effectively
Understand the principal's wishes. Have open discussions with the principal while they can still make decisions, to understand their preferences, values and expectations for their future care and financial management. Write down these discussions where possible.
Maintain open communication. If appropriate and possible, keep the principal informed of decisions. If the principal has lost the ability to make decisions, communicate with close family members (when appropriate and with the principal's prior consent or in their best interests) to ensure transparency and avoid misunderstandings.
Seek professional advice. Do not hesitate to consult with legal professionals, financial advisers, accountants and/or medical practitioners when faced with complex decisions or uncertainties. Professional advice ensures that you have taken the right steps to make an informed decision. The cost of such advice is generally a legitimate expense payable from the principal's funds.
Organise documents. Keep the EPOA document, the principal's financial records and other important papers in a secure and easily accessible place.
Review regularly. Periodically check the principal's financial situation, care needs (if applicable) and how well current arrangements are working. Circumstances can change, and your approach may need to adapt.
Being a good attorney
Being an attorney under an EPOA is a position of deep trust and responsibility. It requires a clear understanding of legal duties, a commitment to acting in the principal's best interests, and a careful approach to managing their affairs.
By making sure you understand clearly the terms contained within the document and your duties, using supported decision-making where possible, and applying good practices, an attorney can make sure the principal's wishes are respected, their money and property are safe, and their wellbeing is put first. This is how to truly be a ‘good attorney.’
Find out more on Compass
7 key things to think about when taking on an attorney role video
The difference between a Power of Attorney and Enduring Power of Attorney
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