Attorney's Obligations

Contributed by Katie Binstock, McInnes Wilson Lawyers and current to March 2018

An Attorney should read the Enduring Power of Attorney document in full and understand the obligations of an Attorney. There can be serious consequences if an Attorney fails to comply with his or her obligations. For example, an Attorney can be held personally and criminally liable for losses.

Attorneys must follow certain decision making principles. Some of the principles are located at Schedule 1 of the Powers of Attorney Act 2006 (ACT). Among other things, Attorneys must:

• act honestly, diligently and in good faith;
• exercise reasonable skill and care;
• take professional advice (if necessary);
• avoid acting where there is, or may be, a conflict of interest (unless the enduring power of attorney specifically authorises the Attorney to act in a conflict);
• unless otherwise specified, only use the principal’s money for their benefit and not for the Attorney’s benefit;
• keep accurate records and accounts of all financial dealings;
• keep the Principal’s property separate from the Attorney’s property;
• give effect to the Principal’s wishes, as far as they can be worked out, unless making the decision in accordance with the wishes is likely to significantly adversely affect the person’s interests;
• support the Principal to take part in decisions to the greatest extent practicable; and
• interfere with the Principal’s life (including the person’s lifestyle) to the smallest extent necessary.

Attorneys must not:

• use the position for profit (unless the Enduring Power of Attorney specifically authorises the Attorney to be paid);
• disclose confidential information (unless authorised by the Enduring Power of Attorney or by law); and
• access what the Attorney believes to be their inheritance prior to the Principal’s death (this is sometimes referred to as ‘inheritance impatience’ or elder abuse (see Elder Abuse)).