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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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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—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now