By Emma Foster - 17 Sep 2019
The role of an attorney appointed under an EPA for
property is a significant one which should be taken seriously and
should not be accepted lightly. Accepting such an appointment
creates legal obligations and duties which cannot easily be
changed. This blog seeks to provide some guidance to a person
acting as a property attorney.
Section 94A of the Protection of Personal and Property Rights
Act 1988 (PPPR) requires the lawyer witnessing the
signature of the person putting the EPA in place
(Donor) to complete a certificate confirming that
they have explained:
- The effects of the document
- The right of the Donor to revoke the power of attorney
- The Donor's right to appoint more than one attorney, or a
trustee corporation, as attorney; and
- The Donor's right to stipulate whether and, if so, how the
attorney's dealings with the Donor's property are to be
monitored.
The effect of this section of the PPPR is that generally,
persons putting EPA's in place are well informed on the role of an
enduring power of attorney and what it entails.
A person who is appointed as an attorney, however, frequently
receives little to no advice on the significance of the role they
are taking on, and accepts the appointment with only a vague
understanding of what the role entails.
Your job as an attorney under an EPA for property is to act for
the Donor and make decisions for them when they cannot make
decisions or sign documents or act in respect of their property for
themselves. This could include carrying out simple tasks, such as
paying their bills, doing their food shopping and operating their
bank accounts, but could also include more complicated matters such
as deciding whether the Donor's home should be sold, and if so, for
what price, running their investments, maintaining their real
estate and finding tenants for rental properties.
The paramount consideration of a property attorney is to use the
Donor's property in the "promotion and protection of the
Donor's best interests, while seeking at all times to encourage the
Donor to develop the Donor's competence to manage his or her own
affairs."
While acting as an attorney for property, you must also:
- Consult with the Donor;
- Consult with any other attorney for property, whether they are
appointed jointly or severally;
- Consult with any other person who the Donor has nominated to be
consulted with;
- Consult regularly with any appointed attorney for personal care
and welfare;
- Provide information to any persons who the Donor has nominated
to be provided with information.
- Keep financial records of all transactions entered into on the
Donor's behalf;
- Provide financial support from the Donor's assets to the
personal care and welfare attorney, if required;
- Use the Donor's assets to promote and protect the Donor's best
interests; and
- Use the Donor's assets for the benefit of the Donor to the
exclusion of all other persons. Unless the enduring power of
attorney states otherwise, a property attorney cannot use the
Donor's assets to benefit themselves or any other person.
Will anyone be checking up on me?
Section 103 of the PPPR permits certain persons to apply to the
Court to review any decision made by an attorney. The persons who
are eligible to apply to the Court include the Donor, any relative
of the Donor, a social worker, a medical practitioner, a trustee
corporation, the manager of any care facility at which the Donor
may be residing, any welfare guardian or any Government
representative involved in preventing elder abuse.
The Court may review any decision made by an attorney and has a
wide discretion to make any order it thinks fit. This includes the
power to revoke the appointment of the attorney if the Court is
satisfied that the attorney is not acting, or proposes not to act,
in the best interest of the Donor, or is failing to comply with any
obligation to consult with or provide information to other persons.
The Court may also impose a fine of up to $1,000 on an attorney for
property who fails to keep proper financial records of their
decisions.
What if I need assistance?
Section 101 of the PPPR allows an attorney to seek directions
from the Court.
What if I no longer want to act as
attorney?
Section 104 of the PPPR permits an attorney to disclaim their
appointment. If you wish to disclaim your appointment while the
Donor still retains mental capacity, disclaiming can be done by
giving written notice to the Donor. However, if you wish to
disclaim your appointment after the Donor has been deemed mentally
incapable, notice of your intention to disclaim must be given by
filing a notice in the Court. This enables the Court to alert the
relevant persons to the fact that the attorney's appointment has
ceased, and an opportunity to determine whether a property manager
should be appointed to replace the attorney who has disclaimed.
In summary
If you have been appointed an attorney and have questions about
your obligations, or if you have concerns about the actions of a
person acting as an attorney, please contact any member of our
specialist
private client team for assistance.
Contact
Emma
Foster