Perform your role as enduring attorney

We help enduring attorneys understand and perform their role on behalf of a loved one who can no longer manage their own legal, financial, and personal affairs.

Someone who depends on you is no longer able to manage their own affairs, and you have been appointed as their enduring attorney to make the decisions they cannot make for themselves. That appointment carries real legal obligations, and most enduring attorneys accept it with enormous care and goodwill but without any guidance about what the role actually requires. We help enduring attorneys understand their obligations and perform their role in a way that honours the trust placed in them.

What are the legal obligations of an attorney under an enduring power of attorney, and how should the role be performed?

An attorney appointed under an enduring power of attorney has authority to act on behalf of the donor in relation to financial and property matters, and in some cases personal and health matters, depending on the terms of the power. The authority granted is significant, but it is accompanied by legal obligations that govern how the authority must be exercised, including the obligation to act in the donor’s best interests, to keep the attorney’s own finances separate from the donor’s finances, to keep records of decisions and transactions, and to avoid conflicts of interest.

Attorneys who exceed their authority, fail to keep records, or act in ways that prefer their own interests over the donor’s can face personal liability and, in serious cases, proceedings before the relevant tribunal. We advise attorneys on their obligations under the applicable legislation, assist in understanding the scope of the authority granted, and provide ongoing advice as decisions arise in the course of performing the role.

What are the most important obligations of an attorney under an enduring power of attorney?

The most important obligations of an attorney under an enduring power of attorney are to act in the donor’s best interests at all times, to keep the attorney’s personal finances completely separate from the donor’s finances, to keep accurate records of all decisions and transactions made under the power, and to act only within the scope of the authority that the power of attorney grants. An attorney who breaches these obligations can face personal liability and may be required to account for any loss caused by the breach. We advise attorneys on each of these obligations and how to meet them in practice.

Can an attorney make gifts or benefit themselves from the donor's assets?

An attorney generally cannot benefit themselves from the donor’s assets or make gifts from the donor’s assets beyond what the power of attorney expressly authorises, and any such action without explicit authority can constitute a breach of the attorney’s obligations under the relevant legislation. Some powers of attorney expressly permit the attorney to make certain gifts or benefit themselves in specified circumstances, but those provisions must be read carefully and their limits understood. We advise attorneys on what the power of attorney permits and what steps are required before any transaction that could involve a benefit to the attorney or a third party.

What records should an attorney keep?

An attorney should keep records of all decisions made under the power of attorney, including details of financial transactions, the basis for significant decisions, and any advice received. These records serve two purposes: they allow the attorney to account for their management of the donor’s affairs if required, and they demonstrate that decisions were made consistently with the attorney’s obligations under the relevant legislation. We advise on what records should be kept and how they should be maintained.

What happens if an attorney makes a mistake in performing their role?

An attorney who makes a genuine mistake while acting in good faith and within the scope of their authority may not face personal liability, but an attorney who acts outside their authority, breaches their obligations, or causes loss through negligence can be held personally responsible for that loss. We advise attorneys on how to perform their role in a way that minimises the risk of mistake and how to respond if a concern about past conduct arises.

Obligations explained clearly before decisions are made, not after something goes wrong.

Scope of authority assessed so that decisions are made within the power granted.

Records and processes established that protect both the donor and the attorney.

You took on this role because someone trusted you. We help you carry it correctly.

An enduring attorney who understands what their role requires can make decisions with confidence, knowing they are acting within their authority and in the best interests of the person they care for. Seeking advice at the outset of the appointment is the most direct way to honour the trust the person placed in you.

Someone you love is depending on you. We help you perform that role correctly.

Someone you care about is no longer able to manage their own legal, financial, or personal affairs, and you have accepted responsibility for those affairs as their enduring attorney. The weight of that responsibility is real, and so is the complexity of the legal framework that governs what you can and cannot do in the role. Acting with care and good intentions is not enough if the decisions made exceed the authority granted or fail to satisfy the obligations the law places on an enduring attorney.

We will review the terms of the power of attorney and advise on the scope of the authority granted and the obligations that attach to the role.
We will advise on the records that should be kept and the processes that should be followed throughout the course of the appointment.
We will provide ongoing advice as significant decisions arise and assess whether those decisions are within the scope of the power and consistent with the attorney's obligations.
We will advise on how to respond if concerns about past conduct arise or if the attorney believes they may have made a mistake.

The person who appointed you trusted you above everyone else to act for them when they could no longer act for themselves, and now you carry that trust in a legal role that most enduring attorneys were never advised about before they accepted it.

Being appointed as an enduring attorney is one of the most personal expressions of trust one person can place in another. It is also a formal legal role that carries obligations which most people who accept it have never been told about. The difficulty is not a lack of care for the person whose affairs you are managing but a lack of guidance about what the law requires from you in performing that role, and decisions made without that guidance can affect both the person depending on you and yourself.

What's included in your enduring attorney advice service

Power of attorney review and authority scope advice.
Attorney obligations and duties explanation.
Record-keeping and process establishment advice.
Ongoing decision-specific legal advice.
Response advice if concerns about past conduct arise.

What goes wrong when attorneys act under an enduring power of attorney without understanding their obligations?

Most of the difficulty enduring attorneys encounter does not come from bad intentions but from the gap between the care they bring to the role and the legal knowledge they were never given. Decisions are made that seemed right and were made with genuine concern for the person’s wellbeing, but later turn out to have exceeded the scope of the power or fallen short of the obligations the law requires. The person who trusted you most is the one most affected when that happens.

Here is how we help you perform your role as enduring attorney correctly.

We review the terms of the power of attorney and advise on what decisions are authorised and what obligations attach to the role before any significant decisions are made. We assist in establishing the records and processes that should be maintained throughout the appointment. We provide ongoing advice as decisions arise so that the attorney understands the legal implications of what they are doing before they do it.

Three steps to performing your role as attorney correctly.

Authority understood, obligations clear, role performed correctly.

Review the power.

We review the terms of the power of attorney and advise on the scope of the authority granted and the obligations that attach to the role.

Establish the process.

We advise on the records that should be kept and the process that should be followed to perform the role in a way that protects both the donor and the attorney.

Advise as decisions arise.

We provide ongoing legal advice as significant decisions arise and assess whether those decisions are within the scope of the power and consistent with the attorney's obligations.

Lawyers experienced in powers of attorney, estate administration, and the obligations of attorneys and financial managers across Australia, with a particular focus on New South Wales and South Australia.

We understand the weight of what you are carrying. Someone you love is in a position where they depend on you to act for them, and you want to do that well. You don’t have to navigate this alone. The legal framework that governs how enduring attorneys must act exists to protect the person in your care, and we will help you understand it clearly so you can perform your role with confidence.

We understand you want to know the cost, before we get started.

We will map out our process, from beginning to end, so you know what the journey will look like before you get started.

We will provide you with a clear and detailed Work Proposal covering each step along the way.

Our fair fees are all-inclusive. No hidden costs for telephone calls, emails, photocopying, couriers, or coffee.

Our great lawyer guarantee

We want to be part of your team over the long term. We achieve this by adhering to these core principles:

Take the time

We listen carefully to understand what you want to achieve. Then we thoroughly explain our advice and step you through the documents. You can be sure you know the full consequences.

Share our knowledge

We will pass on as much knowledge as we can, so you can make your own informed decisions. We want to make you truly independent.

Stick to our knitting

We only do what we're good at. You can be confident that we know what we're doing and don't pass on the cost of our learning.

Work as one team

Someone will always be available to answer your questions, or point you in the right direction. You will also benefit from a range of perspectives and experience.

Fair pricing

For advice and documents, we provide a fixed or capped quote so you don't take price risk. If you're in a dispute, we map out the process and costs so you know what to expect.

It's your show

We're not in this for our egos. We're in it for a front row seat to witness your success.

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