Duties and obligations as an attorney under an Enduring Power of Attorney

Wynyard Wood Solicitor CHANDIMA ARTHUR briefly explains the duties and obligations of an attorney under an Enduring Power of Attorney (EPOA).

Often people are asked to accept an appointment as an attorney under an EPOA without really knowing what is expected of them.

The role of an attorney is similar to that of a trustee in that the person giving you the power of attorney (‘donor’) is placing trust in you that you will act in their best interest. Legally you are obliged to protect the interests of the donor in relation to his/her property and/or personal care and welfare and the law sets out number of obligations under the Protection of Personal and Property Rights Act 1988, sections 99A-99C.

The overriding requirement under any EPOA whether it relates to property or personal care and welfare is to act prudently and selflessly in the best interest of the donor. Put yourself in the shoes of the donor and think what the donor would want in these circumstances.

You are required to consult with the donor and any other person specified in the EPOA as far as practicable. The property attorney and personal care and welfare attorney must also consult each other, if different people are appointed.

You must provide information about how you are carrying out your role as attorney to persons specified in the EPOA or any lawyer appointed by the donor.

More specifically in relation to property you are expected to protect, preserve and invest the donor’s property for his/her benefit. You must not put yourself in a position where you are seen as benefiting for yourself or any other person for example giving away the donor’s assets unless the donor has specifically authorised this.  You can claim reasonable expenses but cannot be paid for what you do unless the EPOA says you can charge.

You must keep records of each financial transaction entered into while the donor is mentally incapable. It is advisable to keep proper accounts and keep family members fully informed in case any financial transaction is later challenged.

In relation to personal care and welfare; you are to ensure that the donor is being well cared for and is in suitable accommodation. You cannot act until the donor loses mental capacity. Usually an appropriate health practitioner will confirm on the prescribed form that the donor is mentally incapable. You must have regard to any ‘advance directive’ or ‘living will’ made by the donor but you don’t have the power to refuse normal medical care or procedures to save life or prevent serious damage to the donor’s health.