Your role and responsibilities as an attorney
As an attorney, you have important legal duties and obligations under the Powers of Attorney Act 1998. When you accept your appointment, you’re also confirming you understand your responsibilities and the consequences of not meeting them.
The information on this page applies to attorneys appointed under two legal documents:
When you sign the ‘Attorney(s) Acceptance’ section of these documents, you:
- confirm you’re eligible to act as an attorney
- have read the EPOA or AHD document thoroughly to understand important details on how to make decisions for the principal
- acknowledge you can only make decisions as allowed by the EPOA or AHD and relevant laws
- agree to follow your legal obligations, including applying the General Principles and, if relevant, the Healthcare Principles
- understand the consequences of failing to meet your obligations, which may include civil or criminal penalties.
It’s strongly recommended that you seek professional advice (e.g. from a lawyer) before you decide to accept an appointment as an attorney.
How do you act and make decisions?
You may be able to make decisions about:
- personal matters - lifestyle affairs, service arrangements, living arrangements
- financial matters - property, paying expenses, providing funds for personal use.
What you cannot do:
- make or change the principal’s will
- vote on the principal’s behalf
- make decisions about the principal’s children or other dependants
- act in ways that are illegal or unethical
- ignore or override the principal’s views, wishes and preferences unless following them is impossible or would cause harm
- make decisions that go against any limitations or conditions detailed in the terms and instructions section of the EPOA document.
If you’re an attorney appointed under an AHD, you can only make health care decisions that are not already covered in an AHD.
If a treatment or care decision is included in an AHD, health care providers cannot ask you to override these instructions.
When does your role as an attorney begin?
For an EPOA, if you've been appointed for:
- personal matters: your role begins only when the principal no longer has the ability to make decisions about the matters you’ve been appointed for
- financial matters: your role begins either immediately or at the time specified by the principal in Section 3 of the EPOA form.
For an AHD:
- Your role begins when the principal no longer has the ability to make their own health care decisions and the AHD does not already cover the matter.
Understanding ability:
- all adults are presumed to have the ability to make their own decisions unless proven otherwise
- being older, ill, or having an impairment doesn’t automatically mean a person lacks ability
- loss of ability may be temporary, and the person may regain ability at different times.
To have ability, the principal must be able to:
- understand the nature and consequences of the decisions they’re making
- make decisions freely and voluntarily
- communicate their decisions in some way.
What are your legal duties and obligations as an attorney?
As an attorney, you must follow specific legal requirements under the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998. These include:
1. Applying the General Principles
When making decisions for the principal, you must:
- assume the principal has the ability to make their own decisions unless proven otherwise
- respect and protect the principal’s right to make their own decisions
- support the principal, where possible, to make and communicate their own decisions
- follow the principal’s views, wishes, and preferences when making decisions on their behalf.
The general principles also uphold human rights, such as the right to privacy. When making decisions, you should protect the person’s rights and opportunities.
2. Applying the Healthcare Principles (if applicable)
If you’re making healthcare decisions for the principal, you must:
- take into account the principal’s views and wishes, including those stated in their EPOA or AHD
- consider information provided by the principal’s healthcare provider.
When healthcare is proposed, you must also consider:
- are there any alternative healthcare options available?
- are there any significant risks associated with the proposed healthcare?
- could the healthcare be delayed to allow for better options, or for the principal to regain ability?
- what consequences may there be for the principal if the healthcare is not provided?
- what are the benefits and burdens of the proposed healthcare?
- how will the healthcare affect the principal’s dignity and autonomy?
3. Acting honestly and diligently
As an attorney, you must:
- always act to promote and protect the principal’s interests, not act in your own or anyone else’s interests.
Practical examples of acting diligently include:
- gathering all relevant information about the principal’s condition and treatment options before making a healthcare decision
- seeking a second opinion for treatments that may involve significant risks
- ensuring the principal has access to regular check-ups and preventative care or screenings appropriate for their age and health.
4. Consulting with the principal’s other attorney(s)
If more than one attorney is appointed, and the document doesn’t specify how decisions should be made, you must make decisions jointly with the other attorneys and agree on every decision.
Regardless of how decisions are to be made, you also must regularly consult with the other attorneys to avoid miscommunication and ensure the principal’s interests are protected.
5. Protecting confidential information
As an attorney, you’re likely to have access to private information about the principal, such as their health, treatment, or financial details. You must:
- protect the principal’s privacy
- keep this information confidential, except when it’s necessary to disclose it to perform your role.
What are the rules for making financial decisions?
As an attorney, you must follow specific rules when making financial decisions. Attorneys should avoid mixing the principal’s money with their own in the same bank account. For complex financial matters, it’s strongly recommended that you read Form 9 – Enduring power of attorney explanatory guide and seek independent legal advice.
Gifts and donations
Attorneys can only use the principal’s money or other property to give gifts and donations if the:
- gift or donation is something the principal would’ve made when they had ability to make decisions
- amount is of reasonable value, considering the principal’s overall financial situation and circumstances.
Important: You cannot use the principal’s money to purchase gifts for yourself or your family.
Conflict transactions
A conflict transaction happens when your duty to act in the principal’s interests conflicts with your own interests. You cannot enter a conflict transaction unless the principal or QCAT has authorised it.
For example, buying the principal’s car or house for yourself at a reduced price would be a conflict transaction.
Supporting the principal’s dependants
You can use the principal’s money or property to provide for their dependants (e.g. children), but only if:
- it's in line with the principal’s wishes
- it’s reasonable in the circumstances
- the principal’s overall financial situation allows for it.
Investments
You can only:
- invest in authorised investments as defined by the Trusts Act 1973 or approved by the Queensland Civil and Administrative Tribunal (QCAT)
- continue investments that existed when your powers as an attorney began.
Keeping records
You must keep accurate records of all financial transactions and dealings made on behalf of the principal. Ensure you can account for all the principal’s money and assets including how they have been used.
Examples include:
- bank statements
- receipts.
Keeping property separate
You must keep your property and finances separate from the principal’s.
Exceptions: property already jointly owned with the principal or property acquired jointly to replace a previously jointly owned property.
What are the consequences if you don’t meet your obligations?
If you fail to comply with your duties as an attorney, you may face the following consequences:
- removal as an attorney - QCAT can remove you if you do not meet your obligations
- criminal liability - it’s a criminal offence to act dishonestly or without reasonable care
- paying compensation - QCAT or the Supreme Court can order you to compensate the principal or their estate for any losses caused by your actions
- accounting for profits - you may be required to return any profits gained from failing to meet your obligations
- other orders - QCAT or the Supreme Court can make additional orders, such as requiring you to produce records or audited accounts
- investigation - we can investigate complaints about your actions and suspend your power of attorney if necessary.
If you’re unsure about your role or responsibilities, it’s strongly recommended that you seek independent legal advice.
What if you want to resign as an attorney?
If you no longer wish to act as an attorney:
- you can resign by giving written notice to the principal, as long as they still have the ability to make decisions
- if the principal no longer has ability, you can only resign with approval from QCAT or the Supreme Court.
More information
ADA Australia has produced a video explaining the role of an attorney under an EPOA.