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What are my responsibilities as an Attorney under an Enduring Power of Attorney

What are my responsibilities as an Attorney under an Enduring Power of Attorney

A person acting as an Attorney under an Enduring Power of Attorney must obey and follow the terms as set out by the EPOA document itself as well as the General and Health Care Principles.

What are the General Principles and Health Care Principles?

Anyone acting as an Attorney on behalf of a person with impaired capacity for making decisions, must comply with the General and Health Care Principles.

General Principles

- Presumption of capacity – The person is presumed to have the capacity of decision until proven otherwise by a health professional.

- Human rights – The person has the same rights regardless of capacity and should be encouraged to join in when decisions are to be made.

- Substituted Judgement – Attorney needs to take into account the Person’s past actions and views when making a decision. Decisions also need to be made which are appropriate to the person’s characteristics and needs, including safety.

- Role in society – The Person should be reminded they are a valued member of society, encouraging self-reliance and participation in community life.

- Existing relationships – Take into account the importance of the Person’s existing supportive relationships, values, culture and language.

- Confidentially – Everyone is entitled to confidentiality.

Health Care Principles

Authority to make a health care decision – The decision should be made in way that is least restrictive of the Person’s rights, promote wellbeing and take into account the Person’s views and beliefs.

Duty to act honestly and within the Person’s best interests

Those acting as an Attorney under an Enduring Power of Attorney must also act honestly and diligently to safeguard the Person’s interests. Some examples of this include; obtaining medical assessment if they believe the Person has lost capacity for decision making, making sure the Person is seeing a health practitioner regularly, and paying bills on time.

An Attorney must act carefully to be sure what they are doing is in the Person’s best interest when it comes to managing their money, property and any legal matters. This includes keeping accurate records of financial and legal transitions, keep the Person’s property separate (unless jointly owned), seek financial advice if unsure of any decisions, review investments annually, and be sure to keep all information confidential.

Unless the EPOA documents state otherwise, an Attorney can provide for the needs of a dependant of the Person and give reasonable gifts to a relation or close friend of the Person during a seasonal or special event.

Avoiding conflict transactions

Aa an Attorney, you must avoid entering into transactions where a conflict may be present or even where a conflict may appear to be present. This includes where the transaction may benefit you as an Attorney, relatives or friends, personally or financially. The exception to this rule is where they are specifically authorised in the EPOA document.

28 November 2018 Articles


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