As an attorney you have certain duties imposed on you by the operation of law that require you to act in the best interest of the person who appointed you.

Under an enduring power of attorney, your appointment continues even if the principal (person who appointed you) has lost mental capacity.  For example, if they have dementia and no longer understand anything you do for them, you can still sign legal documents on their behalf so long as you are acting in his or her best interest.

With a general power of attorney, your appointment ends if the principal has lost mental capacity.  For example, if they have dementia, you cannot sign documents for them anymore.

In relation to real estate, the power of attorney has to be registered with the NSW Land Registry Services (NSWLRS).

Duties of enduring attorney

Here are two questions to ask yourself:  “Do I have a personal interest that is in conflict with my principal’s best interests in doing this?” or  “Am I putting my interests before my principal’s best interest should I do this for them?”.

When you accept your appointment by signing on the form published by NSWLRS, you will see a list of duties outlined as follows:

“Acceptance by attorney

a) I accept that I must always act in the principal’s best interests.

b) I accept that as attorney I must keep my own money and property separate from the principal’s money and property

c) I accept that I should keep reasonable accounts and records of the principal’s money and property

d) I accept that unless expressly authorised, I cannot gain a benefit from being an attorney.

e) I accept that I must act honestly in all matters concerning the principal’s legal and financial affairs.

Failure to do any of the above may incur civil and/or criminal penalties.

Signature: ……………………………………………………………. Date: _____/_____/______

Name: ……………………………………………………………………………………………………………..”

I hope the information was helpful.  I will have another post for our Blog when I come across something that will be useful practical information.