An enduring power of attorney is a good idea in cases of any sudden or gradual onset of a disabling condition. The differences of general powers of attorney, enduring powers of attorney and guardianship are explained.

Contributor

Philip Grano

Principal Legal Officer, Office of the Public Advocate

An attorney’s duties

Last updated

1 July 2020

What can an attorney not do?

Section 26 of the POA Act sets out actions that are not authorised. An attorney cannot:

  • make a will for the principal;
  • revoke an enduring powerpower of attorney;
  • vote in elections;
  • consent to the principal marrying or divorcing or entering a sexual relationship;
  • act in relation to certain matters relating to children and surrogacy arrangements;
  • manage the principal’s estate after their death;
  • engage in unlawful acts.

All of the attorney’s powers are subject to any instructions or conditions set by the principal in the document of appointment. 

Attorney’s authority

The principal authorises their attorney(s) ‘to do anything’ on their behalf ‘that a person can lawfully do by an attorney’. There are two types of authority:

  1. financial matters;
  2. personal matters.

A financial matter is ‘any matter relating to the principal’s financial or property affairs and includes any legal matter that relates to the financial or property affairs’ (s 3 POA Act). The POA Act provides 16 examples of financial matters. ‘Legal matter’ is defined in section 3 of the POA Act.

A personal matter is ‘any matter relating to the principal’s personal or lifestyle affairs and includes any legal matter that relates to the principal’s personal or lifestyle affairs’ (s 3 POA Act). The POA Act provides five examples of personal matters.

Attorney’s obligations

The POA Act (s 21) sets out principles to guide the attorney’s decision-making where the principal has lost capacity to make decisions. The principal should participate in decision-making. The attorney should promote the principal’s personal and social wellbeing by being attentive to their dignity, their existing relationships, religion, values, culture and language.

Confidentiality is mentioned as a principle and as a duty for the attorney. Section 63 of the POA Act sets out a list of duties, but this list is not exhaustive as ‘nothing in this section is to be taken to affect any duty an attorney has at common law’. The listed duties include keeping accurate records and accounts, exercising reasonable skill and care, avoiding conflicts of interest, and not using the position for profit.

There are specific provisions regarding conflict transactions (ss 64–65 POA Act), record keeping (s 66), gifts (s 67), maintenance of the principal’s dependents (s 68), separation of property (s 69), and renumeration of the attorney (s 96).

Case examples

In the case of QQK (Guardianship) [2020] VCAT 570, VCAT revoked an enduring power of attorney because the attorney had entered into, and was considering entering into, a conflict transaction.

The case of WRU (Guardianship) [2018] VCAT 1533 explores conflicts of interest between those of an attorney who claimed he was not acting under the enduring power of attorney at that time but with the principal’s agreement. VCAT appointed an administrator and refused to permit the attorney any right to make decisions under the enduring power of attorney.

The case of MYJ [2019] VCAT 792 explores the attorney’s fiduciary duty and the standard of care an attorney (a daughter) provides for the principal (her mother who has dementia). The case illustrates the types of everyday decisions an attorney may face: renting the principal’s house, seeking financial advice, maintaining the principal’s home, getting reimbursed for travel costs, making gifts on behalf of the principal, buying clothes for the principal, paying legal fees at a VCAT hearing, and keeping good records.

The case of DLM (Guardianship) [2018] VCAT 1683 explores how the duties under section 63 of the POA Act apply to attorneys who were appointed before the POA Act commenced on 1 September 2015.

In NPD (Guardianship) [2020] VCAT 723, the attorney was found not to have complied with his duties by failing to have regard to NPD’s relationship with his daughter and grandchildren.

In PJS (Guardianship) [2020] VCAT 705, VCAT considered the attorney’s obligation to keep the property of the principal separate from their own. This case illustrates the complexity of acting for family members.

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