Duties of a Power of Attorney

An enduring power of attorney is a document that allows a person (the principal) to appoint one or more attorneys to make any financial or personal/health decisions on behalf of the principal.  For personal and health care matters, the attorney’s power begins only if and when the principal becomes incapable of making those decisions.

For financial matters, the attorney’s power begins whenever the principal may request. Remember the principal can still continue to make any of their own decisions while they are capable of doing so irrespective of such a document being executed.

As an Attorney, you have been appointed under the Powers of Attorney Act 1998 (the Act), a very important position that you now have a duty of care to the principal and must at all times apply the general principles and health care principles set out in the Act.

You must act honestly and with care, recognising the right to confidentiality of the principal, considering at all times the supportive relationships, values and culture the principal has always previously enjoyed. When acting as an attorney, your personal views, values or culture have no place in your decision making. It is your obligation to honour the views and requests made by the principal.

When the time comes to exercise the powers of attorney you need to be able to justify your actions. Keep records and accounts of all transactions and dealings, keep your property separate at all times from the principal’s (unless jointly owed), do not give away any of their property or assets and most importantly avoid entering any conflict transactions. These are transactions that may result, in benefiting yourself, your relations, business associates or close friends, thereby creating a “conflict of interest”.

If you act dishonestly as the attorney, you may be required to compensate the principal or the principal’s estate for any loss caused by your failure to comply with your obligations under the power of attorney or under the provisions of the Powers of Attorney Act.

Do not give the original document to anyone, they may view it or they may request a certified copy from you, but the original must always be kept by the Attorney or their solicitor or the principal’s solicitor and must be kept in a safe place, free from fire, flood or accidental damage.

For more information on your duties as a Power of Attorney – contact us at RB Lawyers.