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Duties of an Attorney

In part one of my series on abuse of Enduring Powers of Attorney I addressed what an Enduring Power of Attorney is, and how to make one. When you are contemplating signing an Enduring Power of Attorney, it is worth knowing what the duties of your Attorney will be, so that you know what to expect.

Can I decide my Attorney’s duties?

There are certain aspects of your Attorney’s duties that you can decide. For example, you can state terms for their exercise of their financial power, such as “I do not want my money invested in ABC Company” or “I do not want my term deposit to be reinvested”.

You can also state the terms of your Attorney’s personal/health power to a degree, for example by stating that you would not like to live at a certain care facility. Your Attorney has a duty to ensure that when making personal and health decisions for you, they will:

  1. Make decisions that will contribute to your health and general well-being;
  2. Consult your doctor and consider the advice given to them;
  3. Take into account your views and wishes, if you are capable of making these known; and
  4. Choose methods of treatment that are least invasive, if possible.

However, it is important to be aware that if you have specific wishes for your medical treatment if you are in a critical situation, you will need to complete an Advance Health Directive. In an Advance Health Directive, you can state what you would like to happen if you are, for example, in a vegetative state or require resuscitation.

There are boundaries on what an Attorney can decide. Neither an Advance Health Directive nor an Enduring Power of Attorney can give another person the right to make decisions for you about donation of body tissue, sterilisation, termination of pregnancy, research or experimental care.

What other duties does my Attorney have?

Your Attorney is legally bound by the following duties:

  1. They must act honestly and diligently;
  2. They must maintain your confidentiality;
  3. They must make decisions based on your current life circumstances, including your existing relationships, values, religion and culture; and
  4. They must comply with the principles in the Powers of Attorney Act 1998. You can download a copy of the Powers of Attorney Act 1998 from the website of the Department of Justice and Attorney General if you would like to read these principles.

In the next blog instalment in this series I will address how an Attorney can abuse their powers and what to do if you think you or someone you know may be a victim of an unscrupulous Attorney. If you would like to include specific duties in your Enduring Power of Attorney, or are considering making an Advance Health Directive to make more specific directions, you should obtain the advice of an experiences estate planning lawyer.

Please do not hesitate to contact me should you require assistance regarding Duties of an Attorney or any Enduring Powers of Attorney questions.

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Written by—

Chloe Kopilovic

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