In our February edition of Off the Record, we discussed Enduring Powers of Attorney (EPA) and some of the options available when drafting one. In this edition, we flip the coin and consider what it means if you are appointed as an attorney.
When does the role start?
Being appointed by someone as an attorney is an important role and you need to know what is involved before you agree to it. The role starts when the person who appointed you loses mental capacity - that might happen through illness or accident. Once a certificate of mental incapacity has been issued by a medical practitioner, you’ll be tasked with making decisions about their welfare and property (if you’re managing property, the role might start earlier, if that is what they’ve requested).
What are the duties?
Your main duty is to act in the person’s best interests and make decisions that protect their property, or personal care and welfare.
In addition, you should:
- encourage the person to be involved in the decision-making process as best they can
- keep full records of each decision and financial transaction you make
- understand what the person wants to happen, particularly if there are conflicting views by interested people
- communicate decisions made with the person
What else should you know?
- know and understand your duties and any restrictions
- get a copy of the documents
- be mindful of family members and differing family dynamics
- before accepting, make sure you have the time and ability to carry out the role
Acting on behalf of the person is not a free pass to do as you like with their property. The family court can review your actions and cancel your appointment as attorney if they think it’s necessary and the person can also suspend or terminate you by giving you written notice.
The role of an attorney is an honour but with it comes great responsibility. You've been entrusted to make important decisions at times when the person is at their most vulnerable.