Duties of enduring attorneys

Duties of enduring attorneys

Meaning of terms

A dictionary in schedule 3 defines particular words used in the POA Act.

In simple terms:

An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions.

An attorney under an EPA means a person authorised to make decisions on behalf of another person.

A principal under an EPA means a person who appoints an attorney to make decisions on that person’s behalf.

Power for a matter means power to make all decisions about that matter.

A person’s capacity for a matter means the person is capable of:

understanding the nature and effect of decisions about the matter; and
freely and voluntarily making decisions about the matter; and
communicating the decisions in some way.

A person’s impaired capacity for a matter means the person does not have capacity to make decisions about the matter.

General duties of enduring attorneys

An attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

Duty to comply with general principles

The general principles set out in s 6C of the POA must be applied by a person or other entity that performs a function or exercises a power under the POA or an enduring document. The general principles include:

An adult is presumed to have capacity for a matter.
An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.
Empower an adult to exercise the adult’s human rights and fundamental freedoms.
An adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.
The importance of maintaining an adult’s existing supportive relationships must be taken into account.
The role of families, carers and other significant persons in and adult’s life to support the adult to make decisions should be acknowledged and respected.
The important of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.
For an adult who is Aboriginal or Torres Strait Islander, the importance of maintaining their cultural and linguistic environment and set of values must be taken into account.
An adult’s privacy must be taken into account and respected.
An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.
An adult’s right to liberty and security on an equal basis with others must be taken into account.
An adult should not be deprived of the adult’s liberty except in accordance with the law.
An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.
An adult must be given the support an access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.
An adult must be given the support necessary to enable to adult to communicate the adult’s decisions.
To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.
An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.
A person or other entity in performing a function or exercising a power under the POA in relation to an adult or other enduring document for an adult must do so in a way that promotes and safeguards the adult’s rights, interests and opportunities; and in the way that is least restrictive of the adult’s rights, interests and opportunities.
A person or other entity in performing a function or exercising a power under the POA must recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and if possible, support the adult to make a decision.

Duty to comply with health care principle

An attorney exercising power for a health matter must also comply with the health care principle set out in s 6D of the POA Act.

When making decisions for a health matter, an attorney must also apply the general principles, as well as:

the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and
any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.
Taking into account information given by the adult’s health provider, the nature of the adult’s medical condition and prognosis, any alternative health care that is available, the nature and degree of any risks with proposed or alternative health care, whether health care can be postponed, the consequences for the adult if proposed health care is not carried out, consideration of the benefits versus burdens of the proposed health care; and the effect of the proposed health care on the adult’s dignity and autonomy.
The wishes and views of an adult expressed when the adult had capacity in an advance health directive.

Duty to act in a principal’s best interests – an attorney must exercise a power granted by a principal in accordance with the terms of the EPA, and act honestly and with reasonable diligence to protect the principal’s interests (section 66 POA Act).

An attorney may be ordered to compensate the principal for losses or any other liability incurred by the principal as a result of the attorney’s failure to discharge this duty.

Duty of confidentiality

An attorney must not use confidential information gained by being an attorney, unless the attorney has a reasonable excuse or the use of such information is allowed by the POA Act (sections 74, 74A POA Act).

For example, an attorney may disclose confidential information about the principal’s affairs:

If authorised or required under a regulation or another law;
For a proceeding arising out of or in connection with this Act;
If authorised by the person to whom the information relates;
If authorised by the court or the tribunal in the interests of justice;
If necessary to prevent a serious risk to a person’s life, health or safety; or
For the purpose of obtaining legal or financial advice; or
If reasonably necessary to obtain counselling, advice or other treatment; or
In reporting a suspected offence to a police officer or assisting a police officer in the investigation of a suspected offence; or
In assisting the public guardian, the public advocate or a public service officer in the performance of functions of the POA or Guardianship and Administration Act or Public Guardian Act.

Duty to avoid conflict transactions

All enduring attorneys must avoid acting if there is, or may be, a conflict of interests or a conflict of duties, unless the EPA or the principal authorised that action while the principal had capacity to do so. In that case, it is recommended that an attorney applies to QCAT or the Supreme Court for a direction about the conflicting matter.

Attorneys for financial matters have an additional duty not to enter into a transaction if there is, or may be, a conflict between a duty the attorney owes to the principal and the attorney’s interests (or the interests of a relation, business associate or close friend of the attorney) (section 73 POA Act).

There is a presumption that in a conflict transaction between a principal and attorney (or between a principal and a relative, business associate, or close friend of the attorney), the attorney induced the principal to enter into that transaction by undue influence (section 87 POA Act).

If a principal does not have capacity to authorise a conflict transaction entered into by the attorney, the attorney must seek the authority of QCAT or the Supreme Court before entering into such transaction.

Certain conflict transactions are authorised by the POA Act and may not need to be authorised by QCAT or the Supreme Court first, for example:

certain dealings concerning property that is jointly owned between the attorney and principal (section 73(7) POA Act);
if an attorney gives a gift or makes a donation on behalf of a principal in accordance with section 88 POA Act; or
if an attorney provides for the needs of a principal’s dependants from the principal’s estate in accordance with section 89 POA Act. (See Powers of enduring attorneys)

Duty to keep records for financial matters

Attorneys for financial matters must keep accurate records and accounts of all dealings and transactions made on behalf of a principal (section 85 POA Act).

These records and accounts may be eventually audited by QCAT or the Supreme Court. It is recommended that attorneys for financial matters seek assistance from a book keeper or accountant to set up an appropriate recording system and budget for the principal if necessary.

A monthly statement of accounts is commonly used to record income and expenses incurred by a principal. Large expenses should be recorded separately and receipts for such expenses should be kept.

Duty to keep property separate

Attorneys for financial matters must keep their property separate from a principal’s property (section 86 POA Act), for example in separate bank accounts or storage places.

That obligation does not arise to property jointly owned by a principal and attorney before the EPA commenced. However, for jointly owned property, records must still be kept by the attorney clearly showing the principal’s share in the property.

This resource is current as of 30 June 2023