Act under an enduring power of attorney
We will tell you what you can and cannot do with someone else's money, before you do it.Being appointed attorney is usually treated as an honour and then discovered to be a job. From the moment the power is activated you are managing another person’s finances, and you are personally accountable for how you do it. The duties are real. Keep their money separate from yours, act in their interests rather than your own, and keep records. Avoid any transaction where you stand on both sides. Attorneys rarely get into trouble for dishonesty. They get into trouble for not knowing the rules.
Authority confirmed before you act
What an attorney may do is decided by the document, and most people hold narrower powers than they assume.
Records that answer a challenge
An order to account is answered with contemporaneous records, which is what most attorneys do not keep.
Conflicts spotted in advance
A transaction where you stand on both sides is a breach even when every dollar is properly accounted for.
What does acting under an enduring power of attorney actually involve?
An enduring power of attorney lets someone appoint another person to manage their financial affairs. It continues to operate after the appointor loses capacity. That continuation is the whole point of it, and it is also what makes the role serious. The attorney is a fiduciary. They must act in the appointor’s interests and keep the appointor’s property separate from their own. They must keep proper records and stay within whatever limits the document sets. The authority comes from the document, so what an attorney may do is decided by what it says.
Can I use the money to pay myself for my time?
Only if the document authorises it. An attorney is generally not entitled to remuneration, and paying yourself without authority is a breach even where the work was genuinely done. If you are spending significant time, raise it before you take anything rather than afterwards.
Can I keep making the gifts my parent always made?
Not automatically. Continuing a long-standing pattern of gifts feels reasonable and is still a breach unless the document permits it. Some documents allow modest gifts of a customary kind. Others are silent, and silence means no authority.
What records should I be keeping?
Enough to reconstruct every transaction without relying on memory. A separate account for the appointor’s money, receipts for expenditure, and a note of the reason for any significant decision. The test is whether a tribunal could follow the money a few years later.
What if other family members disagree with my decisions?
Disagreement is common and is not itself a problem. What matters is that each decision was within your authority and is documented. Where a relative applies to a tribunal, a clear account usually resolves it quickly. Where there is a genuine conflict, somebody else may need to act on that transaction.
Get advice before the first significant decision
Send us the document and tell us what you are being asked to do. We will tell you whether the power covers it and what you need to record.
You are accountable for decisions made with someone else's money
You have been appointed attorney for a parent, a spouse or a friend, and their affairs are now yours to manage. Nobody handed you the rules with the document. The decisions that come up are ordinary ones: selling a house, moving money, paying for care, helping another family member. Each of those can be entirely proper or a breach of duty, depending on the document and how you go about it.
- We will read the document and tell you the exact scope of your authority.
- We will advise on significant decisions before you make them.
- We will set up record-keeping that will satisfy a tribunal if you are asked to account.
- We will identify the transactions where a conflict means you should not act.
- We will help you respond if a relative challenges what you have done.
You are now managing somebody else's affairs and the family is watching
A parent’s health has changed and the power you signed years ago is suddenly live. There are bills to pay, a house that may need to be sold, and other family members with views about all of it. You want to do the right thing and you are not certain what the right thing is. The pressure usually comes from relatives rather than from any regulator.
What's included in your attorney advice
- A written summary of the scope and limits of your authority.
- Advice on specific decisions before they are made.
- A record-keeping framework suited to an order to account.
- Conflict of interest assessment for proposed transactions.
- Assistance responding to a relative's request for an account.
- Advice on tribunal applications where no valid document exists.
How well-meaning attorneys end up in trouble
The attorneys who get into difficulty are almost never the dishonest ones. They are the ones who did something reasonable without knowing it needed authority.
Money is the usual flashpoint. Paying a bill from the wrong account is a breach even where every dollar is accounted for. So is letting the appointor’s funds sit alongside your own. Continuing a pattern of gifts the appointor used to make is a breach unless the document permits it. Selling the house and lending the proceeds to a family member puts you on both sides of a transaction. Interest and good intentions do not change that.
The consequence is not usually a prosecution. It is a tribunal application brought by another relative, an order to account, and sometimes an order to repay personally. The defence is contemporaneous records, which is the one thing most attorneys do not keep.
From an appointment you accepted to a role you can discharge safely
We start by reading the document, because attorneys often hold powers that are narrower or broader than they assume. Some are limited to particular assets. Some do not permit gifts, or benefits to the attorney, without express authority.
Then we deal with what you actually have to do. We advise on the significant decisions before they are made, and set up a record-keeping approach that will satisfy a tribunal. We also tell you where a conflict means somebody else needs to act. Where relatives are already raising questions, we help you respond with an account rather than an argument. Where the appointor has lost capacity and there is no valid document, we advise on the application that has to be made instead.
How we support you as attorney
Read the document, decide with authority, and keep the records.Read the document
We set out exactly what the power authorises, and what it does not.
Decide with authority
We advise on significant decisions before they are made rather than after they are questioned.
Keep the account
We put record-keeping in place that will satisfy a tribunal if you are ever asked to explain.
Advice on the decision before you make it, not after
Most attorneys are doing an unpaid job for someone they love, at a point when that person’s health is already difficult. Being questioned about it by other relatives is a particular kind of hurt.
Two of our lawyers are full members of the Society of Trust and Estate Practitioners. Three of our lawyers are recognised in Doyle’s Guide for estate and succession law. We advise attorneys on the scope of their authority, on the decisions that need it, and on responding when a relative asks for an account. We would much rather advise before a transaction than defend one afterwards.
Our great lawyer guarantee
Six principles we hold to, whatever you bring us and however long it takes.
Take the time
We listen carefully to understand what you want to achieve, then step you through the advice and the documents.
Share our knowledge
We pass on as much as we can, so you can make your own informed decisions.
Stick to our knitting
We only do what we are good at, so you never pay for our learning.
Work as one team
Someone is always available to answer your question or point you the right way.
Fair pricing
A fixed or capped quote for advice and documents, so you do not carry the price risk.
It is your show
We are in it for a front row seat to witness your success, not for our egos.
Get clear on what you are authorised to do
Send us the power of attorney and tell us what decisions are coming up. We will tell you what you can do, what needs authority, and what to record.
More on this area of law
Read more about enduring powers of attorney, attorney duties and capacity, and how ADLV Law can help.
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