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Duties as an enduring power of attorney

Duties as an enduring power of attorney

You have been appointed as an attorney under an Enduring Power of Attorney.

What are your duties?

Of course, you have to agree to be appointed as an attorney before the appointment can be effective. Sometimes, the Enduring Power of Attorney (“EPA”) also states that the appointment will only take effect after a declaration is obtained from the State Administrative Tribunal (“SAT”) stating that the donor is incapable of making decisions for themself. The SAT then makes an order that you are now legally the attorney for the donor or the person who appointed you.

So what are your duties as an attorney under an EPA?

Your duties are set out in Section 107 of the Guardianship and Administration Act 1990. They include:

     Exercising your power with reasonable diligence to protect the interests of the donor. So, you cannot take money from the donor’s account and go on a shopping spree.

  • Keeping accurate records and accounts of all your dealings and transactions. If you fail to keep proper records, you may be prosecuted and fined.
  • Informing the SAT if you become a bankrupt.
  • Making an application to SAT if you wish to be removed or cease to act when the donor has lost capacity.

It is advisable to discuss your proposed actions with the donor if the donor is still able to provide a view or opinion even if they have lost capacity. So for example, if you think you should move the donor to a nursing home, you may still wish to bring the donor to a few of the proposed homes to see the donor’s reaction. Sometimes, you may also wish to discuss your proposed course of action with other family members of the donor.

Once you are appointed, it is best to check that you have obtained all the relevant financial information relevant to the donor. You should also check what expenses the donor has so as to make sure the expenses are managed properly.

If you are unsure as to what needs to be done for your donor, do speak to a lawyer for advice. It may be that an application may need to be made to SAT for directions if you are uncertain as to whether your proposed action is proper.