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attorney conflict transactions enduring power of attorney estate planning lawyers brisbane solicitors queensland

Attorney conflict transactions

In Queensland, an Enduring Power of Attorney allows you to appoint someone you trust (your attorney) the power to make decisions about personal (including health) matters and/or financial matters for you (whilst you are alive).

More information on the importance of an Enduring Power of Attorney and how it operates in relation to your estate plan, can be found here

An attorney under an Enduring Power of Attorney has a range of duties towards the person who granted the powers (who is called the principal). These duties are outlined in the Powers of Attorney Act 1998 (Qld) (Act).  

One of those duties, is to avoid conflict transactions.  

What is a conflict transaction?

A conflict transaction happens when there is a conflict between your attorney’s duty to you and their own interests.

Examples of conflict transactions:

A conflict transaction can arise if your attorney for financial matters:

  1. wishes to buy the family home after you move into a care facility; so as to ‘keep it in the family’;
  1. gifts or lends your money to themselves, their family, their close friends or business associates;
  1. rents your residential property to themselves or one of their relatives;
  1. uses your money to pay their personal expenses, including their personal travel expenses;
  1. mixes your pension income with their own pension income;
  1. utilises your income for their own benefit; and
  1. deals with your assets in a way that will defeat your estate plan after your death.

If you are appointed as an attorney, it is important to ensure you understand your obligations.

We sometimes we see these transactions arise with an attorney, innocently, as they simply have not properly understood their role as an attorney.

Can I authorise my attorney to enter conflict transactions?

Section 73 of the Act provides that an attorney may enter into a conflict transaction only if the principal authorises that transaction.

This is usually done by expressly authorising your attorney to enter conflict transactions in the terms of your Enduring Power of Attorney document itself.

If an attorney is not authorised by the principal, they are prohibited from entering into any conflict transaction. The ramifications on your attorney may be significant, if they enter into these transactions, without such authorisation.

I wish to prepare an Enduring Power of Attorney. Should I authorise conflict transactions?

Firstly, you need to carefully consider the ramifications of authorising your attorney to enter into conflict transactions.

Authorising your attorney to enter conflict transactions means your attorney will have unrestricted power to coordinate your affairs, even if it is for their personal benefit.

Everyone’s circumstances are different, but anyone preparing an Enduring Power of Attorney needs to make a careful and informed decision whether to:

  1. authorise conflict transactions;
  1. authorise specific types of conflict transactions;
  1. give authorisation to particular attorneys only to enter into conflict transactions (e.g. your spouse but not your children); or
  1. not give that authorisation at all.

How can I avoid these types of attorney disputes?

To avoid or reduce these types of attorney disputes, it is important for:

  1. Your Enduring Power of Attorney document to be carefully considered

If you are considering appointing an attorney, it is important to consider all aspects of having such a document. It is important to choose someone who is responsible, impartial and reasonable. 

  1. Seek legal advice before including any specific terms in your Enduring Power of Attorney

Allowing an attorney to engage in conflict transactions may result in unintended consequences, or unnecessary disputes between your loved ones.  A lawyer can provide you with advice and options for including specific terms in your Enduring Power of Attorney.

  1. Your attorney should seek advice about their role

It is crucial that your attorney understands and acknowledges their obligations to you. If your attorney does not carry out their role having regard to their duties and obligations, there can be serious penalties.

  1. Make others aware of who you have appointed as your attorney

Under the new Enduring Power of Attorney document, introduced in November 2020, there is now a dedicated section in which you may express who your attorney must notify in writing, before your attorney begins exercising their powers for the first time.

These people interested in your well-being can then make enquiries and check in on your appointed attorney’s actions.

Please do not hesitate to contact us if you need assistance with preparing an Enduring Power of Attorney or have any questions in relation to your attorney entering conflict transactions.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Duncan MacDougall

Call 07 3035 4077 to speak with our team now