An attorney acts on behalf of a person while they are still alive so it is important you understand the key duties involved. You should also be aware of the extent of which you must involve the person you are making decisions for or any other person they have nominated to be informed.
What Powers have been given to you?
The power of attorney form will state who has been appointed to make decisions on behalf of the Principal. It will also outline what type of powers over decision making the attorney/s have. It is important for anyone who is acting as an attorney to identify:
- if they have the power to make personal and/or financial decisions;
- whether they must make the decisions with someone else; and
- if the Principal has restricted the type of decisions the attorney/s can make.
You should ensure that you only act within the power given to you in the attorney form and be mindful of the matters listed below. If you act inappropriately as an attorney, the Court may require you to compensate the attorney and you may be charged with an offence if you act dishonestly.
Paramount Duty to Act in Principal’s Best Interest
The most important duty any attorney must remember is that when making decisions, they must be in the best interest of the Principal. This means the attorney must act honestly and with reasonable care to protect the principal’s interest. The attorney may be held personally liable for making any dishonest and unreasonable decisions. Some ways an attorney can ensure they are acting honestly and reasonably is to:
- not disclose the Principal’s information;
- keep accurate records for all dealings made on behalf of the Principal;
- keep the Principal’s property and assets separate from the attorney’s;
- avoid acting as attorney in situations where there is a conflict between the Principal’s and the attorney’s interest.
Involvement of Principal in Making Decisions
Your appointment as an attorney may commence immediately, at a later date or event. Regardless of when the appointment begins, the attorney is still required to involve the Principal in making decisions. This is in accordance with the law that adults have a basic human right to make decisions for themselves. Even if the adult is deemed to have lost capacity, that human right still remains and their wishes must be taken into account. Therefore, an attorney should:
- while the Principal still has decision-making capacity you must act in accordance with their instructions. This applies even if the power of attorney form gives you the power to make decisions for the Principal immediately;
- when the Principal loses decision-making capacity, you must encourage them to be involved in the decision-making process. You may do this by acting in a way that does not restrict the Principal’s ability to make decisions;
- Allow the Principal access to appropriate support to participate in making decisions. If the Principal does participate in making the decisions you must take all practicable steps to effect it; and
- Always act in a way that encourages the Principal’s personal and social wellbeing.
It is important to be mindful that a Principal is not considered to have lost capacity until a health professional confirms it. This is why it is important to always involve the Principal in the decision-making process and following their wishes.
It is possible that you may acquire confidential information while acting as an attorney. The Powers of Attorney Act 1998 (Qld) generally prohibits the use of confidential information obtained during the course of acting as an attorney. The exception to this rule is if the attorney has a reasonable excuse to use the confidential information. Section 74 of the Powers of Attorney Act 1998 (Qld) provides a list of exceptions which includes:
- disclosing information that relates only to a particular person, to the particular person;
- the attorney is authorised to use it under another regulation or law;
- for a proceeding arising out of the Powers of Attorney Act 1998 (Qld);
- authorisation by the person the confidential information relates to;
- authorisation by the court in the interest of justice;
- to prevent a serious risk to a person’s life, health or safety;
- in order to obtain legal or financial advice;
- if it is reasonably necessary in order to obtain counselling, advice or other treatment;
- if the attorney is reporting a suspected offence committed to a police officer; or
- assisting the public guardian under the relevant legislation.
It is generally advised that attorneys avoid situations where the Principal’s and attorney’s interests may conflict. Nonetheless, section 73 of the Powers of Attorney Act 1998 (Qld) does allow an attorney to enter into a transaction where the attorney’s interest conflicts with the Principal’s interest. This is only if the principal specifically authorises the attorney to enter into a conflicting transaction.
If an attorney believes a conflict transaction is necessary in order to manage the Principal’s affairs, they should apply to the Queensland Civil and Administrative Tribunal to obtain approval to enter into the transaction before actually entering into one.
The Powers of Attorney Act 1998 (Qld) allows an attorney to make a gift to the Principal’s relation or close friend or for a special event (such as a birth or marriage). However, the Principal must have been reasonably expected to make the decision to make the gift. To determine whether the Principal would have been reasonably expected to make that gift, the attorney should take into account:
- whether the Principal would have made the gift if they had capacity to make decisions; and
- the Principal’s financial circumstances to determine whether the value of the git is a reasonable value.
If you do make a gift you should remember to keep a written record of the gift made, who the gift was made to and the gift’s total value.
If you have any questions or require assistance with drafting or updating your power of attorney in Queensland, please contact the property team at My Property Protect for more information.
Kayleigh Swift, Associate
Chloe Skubis, Graduate Law Clerk
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.