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I've been appointed an attorney under an enduring power of attorney for property - now what?

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:

  1. Consult with the Donor;
  2. Consult with any other attorney for property, whether they are appointed jointly or severally;
  3. Consult with any other person who the Donor has nominated to be consulted with;
  4. Consult regularly with any appointed attorney for personal care and welfare;
  5. Provide information to any persons who the Donor has nominated to be provided with information.
  6. Keep financial records of all transactions entered into on the Donor's behalf;
  7. Provide financial support from the Donor's assets to the personal care and welfare attorney, if required;
  8. Use the Donor's assets to promote and protect the Donor's best interests; and
  9. 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.


Emma Foster


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