The Responsibilities of an Attorney Under POA, Explained

One of the most important decisions a person makes when writing their legal Will is deciding on who will be responsible for making financial and personal decisions on your behalf if – or when – you are unable to make them yourself.

So, if someone has selected you as their attorney – that’s a pretty big compliment. It means they likely trust you… a lot.

What is a Power of Attorney?

We’ve actually written an entire guide on the role of an attorney, but to set the scene for this guide, a Power of Attorney refers to a legal document that provides a person (or trustee) with the legal authority to manage and make personal and/or financial decisions on an individual’s behalf when they aren’t able to make decisions for themselves.

There are two types of attorney: Enduring and General. Once again, you can learn more about these in our previous guide.

If I’m selected as an attorney for a loved one, what are my duties?

With a big role comes BIG responsibility.

Firstly, it’s extremely important you exercise your power honestly and with reasonable diligence. Remember: Your loved one has appointed you because they trust you to make the right decisions on their behalf, with their best interests at heart (Section 66 of the POA Act requires you to make honest and reasonable decisions).

But secondly, there is quite an extensive list of duties an attorney may be responsible for. Here’s what these duties will likely include:

• The attorney must be aged 18+ and will be presumed to have capacity to make decisions on the individual’s behalf.
• The attorney’s inherent dignity and worth, and inalienable rights, must be recognised and taken into account.
• The attorney must take the individual’s current relationships with others seriously. They must do whatever they can to ensure existing supportive relationships aren’t impaired or fractured. This includes the individual’s relationship(s) with their friends, family and carers.
• The attorney must maintain the individual’s cultural and linguistic environment, set of values and religious beliefs where possible. These elements need to be taken into account every time a decision is made on the individual’s behalf. This rule also applies to Aboriginal or Torres Strait Islander individuals, too.
• The individual’s privacy must always be taken into account and respected. Their personal information – including all health information – must be protected at all costs.
• The attorney must ensure the individual’s right to liberty and security on an equal basis with others.
• The attorney must acknowledge that the individual still has a right to make decisions that impact their own life, if they are able to. This has to be taken into account every time a decision is made, and the individual must be provided with all the information necessary to make educated decisions about their own life and care (if able to do so).
• The attorney must seek out the views, wishes and preferences of the individual who elected them. These views, wishes and preferences can either be expressed in writing, by conduct or orally.
• The attorney must – at all costs – make decisions that both promotes and safeguards the individual’s rights, interests and opportunities. It’s important to make decisions that are least restrictive for the individual who appointed them.
• The attorney must recognise that the individual still possesses the right to make their own decisions. As a result, they must do whatever they can to help the individual make a decision with their best interests at heart.

Wrap up

Yep, that’s a lot of responsibility to carry. But, chances are – given your loved one has elected you as their attorney – you’ll know exactly how they’d want you to approach decision-making on their behalf (or alongside them). When in doubt, it’s always worth asking a lawyer, one of their other trusted loved ones, and the individual themselves about what the best personal or financial decision might be.

Getting things right is important, and ensuring you do whatever you can to respect your loved one is super important.

If you're ready to write your own Powers of Attorney document, get started with Willed at willed.com.au.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, medical, accounting or tax advice.