3, Sussex Terrace, Hawthorn, South Australia 5062
Telephone: (+ 61 8) 8172 1222
Facsimile: (+ 61 8) 8127 9553
Contact
Enduring powers of attorney are authorised by the Powers of Attorney and Agency Act, 1984. Prior to the commencement of that Act, a power of attorney ceased to be legally effective when the donor ceased to have legal capacity. However, an enduring power of attorney remains legally effective in the event of the donor's loss of legal capacity.
The Act places very heavy duties on you as an attorney:
during any period of the donor's legal incapacity, you must exercise your powers with reasonable diligence to protect the interests of the donor and, if you fail to do so, you are liable to compensate the donor for any loss arising from your failure;
you must keep and preserve accurate records and accounts of all dealings and transactions made as attorney - failure to do so is an offence;
you cannot renounce the power during any period of the donor's incapacity, without the leave of the Supreme Court.
The Supreme Court has power under the Act:
to require you to produce copies of all records and accounts of all dealings and transactions made as attorney;
to require the records and accounts to be audited;
to revoke a power of attorney, or to vary its terms, or to appoint a substitute attorney;
to make any order as to the exercise of the power of attorney, or as to its interpretation;
in certain circumstances, to vary the entitlements due to beneficiaries of the will of a deceased donor, if those entitlements have been affected (whether advantageously or not) by anything done by you during any period of incapacity of the donor.
You must be conscious at all times of your status as a trustee - you have been entrusted by the donor with all his assets, to take care of them and to use them only for his benefit. The donor's interests are paramount. Everything you do under the power of attorney must be, and must be capable of being shown to be, in the interests of the donor. You must never do anything which is, or may be considered to be, in furtherance of your interests, or anyone else's, at the expense of the donor. For example:
you must not give any of the donor's property to yourself or to others;
you must not use the donor's money to pay the debts of yourself or of others;
you must not use the donor's assets as security for a loan to yourself or to others.