Private Client
A Property Attorney appointed under an Enduring Power of Attorney in relation to Property (“EPOA”), should, when managing the property affairs of the person they are authorised to represent (“the donor”):
- Act to promote and protect the donor’s best interest, and
- As far as is possible, encourage the donor to develop their ability to manage their own property affairs.
The Property Attorney must discharge his or her duties towards the donor with the utmost loyalty, honesty and good faith always acting the donor’s best interest in accordance with the terms of their appointment under the EPOA.
Duties of a Property Attorney:
Some of the key duties of a Property Attorney, while the donor is mentally incapable, include:
- Keeping records of all financial transactions and provide the information if requested or directed by the Court.
- When dealing with the donor’s property, to not act for the Property Attorney’s benefit or the benefit of any person other than the donor, or recover expenses from the donor’s property, unless and only to the extent that:
- The donor has specifically provided for this in their EPOA, or
- The Court has authorised the Property Attorney to do so, or
- The Property Attorney’s action relating to one or more of the following matters and the EPOA does not expressly exclude:
- If the Attorney and donor are married to, or in a civil union or de facto relationship with, each other, and are living together and sharing their incomes, any action taken by the Property Attorney in respect of real or personal property that the donor and the attorney own jointly and not as tenants in common.
- Any payments of a kind for which receipts or other evidence are provided to the Property Attorney of out-of-pocket expenses reasonably incurred by the Property Attorney (not lost wages or remuneration) or professional fees and expenses reasonably incurred by a Property Attorney who has accepted the appointment in a professional capacity.
Failure to Keep Accurate Financial Records
It should be noted that an Attorney who fails, without reasonable excuse, to keep records of each financial transaction entered into by them under the EPOA while the donor is mentally incapable, commits an offence and is liable, on conviction, to a fine not exceeding $1,000.
If you are considering accepting an appointment as a Property Attorney, you may wish to get legal advice from the outset to ensure you understand your role, obligations and duties moving forward. If you require more information, the team at Brookfields can guide you through the process and ensure all the requirements under the Protection of Personal and Property Rights Act 1988 are met.
