The RMB Lawyers’ Canberra Wills & Estates & Disputed Wills Division explains the obligations of Enduring Attorneys under ACT legislation.
An Enduring Power of Attorney is a legal document granting someone you trust the authority to act on your behalf to make legally binding decisions.
In the ACT Powers of Attorney are governed by the Powers of Attorney Act 2006. A general Power of Attorney operates only while the principal has decision-making capacity, whereas an Enduring Power of Attorney continues when the principal loses his or her decision-making capacity.
For the purposes of the Act, a person has impaired decision-making capacity if the person cannot make decisions in relation to their affairs or does not understand the nature or effect of the decisions made in relation to their affairs.
Here are the obligations on people appointed to an Enduring Power of Attorney role:
- Apply general principles such as providing access to family members and relatives, providing human worth and dignity, encouraging the principal to be a valued member of society and to participate in community life and to enjoy a reasonable quality of life, allowing the principal to participate in decision-making where practicable (Schedule 1).
- Act honestly and diligently.
- Exercise powers according to the terms of the Power of Attorney.
- Benefits: A Power of Attorney does not authorise an attorney to do anything that would result in a benefit being conferred on the attorney unless the Power of Attorney expressly authorises the giving of a benefit of that kind to the attorney (s 34).
- Gifts: An Enduring Power of Attorney does not authorise the attorney to make a gift of the principal’s property to anyone else unless the Power of Attorney expressly authorises the making of the gift (s 38).
- Avoid conflict transactions – transactions that may result in conflict between the duty of an attorney towards the principal and either the interests of the attorney or their relative, associate or friend or another duty of the attorney (s 42). An attorney may enter into a conflict transaction only if the principal authorises the transaction, conflict transactions of that kind or conflict transactions generally, in the Power of Attorney.
- Keep accurate records and accounts of all dealings and transactions (s 47).
- Keep the attorney’s property separate to the principal’s property unless it is jointly owned (s48).
If you or your family have further questions an Enduring Power of Attorney or your estate in general, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.