What can an attorney not do?
Section 26 of the POA A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. sets out actions that are not authorised. An attorney cannot:
- make a A document that sets out what a person wants to happen to their money and other property after they die. for the principal;
- revoke an Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney.A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney.;
- vote in elections;
- To agree to something being done, to approve an action or arrangement. See also informed 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 All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. 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.
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:
- financial matters;
- 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.
The POA Act (s 21) sets out principles to guide the attorney’s decision-making where the principal has lost The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. 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.
The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships. 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), Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. of the principal’s dependents (s 68), separation of property (s 69), and renumeration of the attorney (s 96).
In the case of QQK (Guardianship)  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)  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 (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up. and refused to permit the attorney any right to make decisions under the enduring power of attorney.
The case of MYJ  VCAT 792 explores the attorney’s An obligation to act honestly and for the benefit of another person. The duty only applies to certain relationships where a fiduciary relationship exists; for example, a solicitor owes a fiduciary duty to their client and a trustee owes a fiduciary duty to their beneficiaries. 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 The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs., making gifts on behalf of the principal, buying clothes for the principal, paying legal fees at a VCAT The time and place at which a court or tribunal hears the parties argue their case and makes a decision., and keeping good records.
The case of DLM (Guardianship)  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)  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)  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.