Summary of Obligations Imposed upon Attorneys

  1. The Attorney must, during any period of legal incapacity of the Donor, exercise his or her powers of attorney with reasonable diligence to protect the interests of the Donor, and in the event of failure to do so, is liable to compensate the Donor for loss occasioned by the failure (Section 7 of the Act).
  2. If the Attorney fails to keep and preserve accurate records and accounts of all dealings and transactions made in pursuance of the power, the Attorney is guilty of an offence (Section 8 of the Act).
  3. The Attorney may not renounce the power during any period of legal incapacity of the Donor except with leave of the Supreme Court (Section 9 of the Act).
  4. Where the administration of the estate (or part of the estate) of the Donor is vested in another person under the Mental Health Act or a Manager under the Aged and Infirm Persons’ Property Act, the Attorney is accountable to the other person or Manager as if he or she were the Donor (Section 10 of the Act).
  5. The Attorney and any person who has a proper interest in the matter is empowered to apply to the Supreme Court for various orders and directions, including an order revoking or varying the terms of the Power or to appoint a substitute Attorney. The Court also has the power to require the Attorney to file in the Court and serve on the person interested a copy of all records and accounts kept by the Attorney of dealings and transactions made in pursuance of the power, and also requiring such records and accounts to be audited (Section 11 of the Act).
  6. Subject to paragraph 3 above, an Enduring Power of Attorney may be revoked by the Donor simply giving written notice to the Attorney stating the date upon which such revocation is effective.
  7. An Attorney should be aware of any limitations imposed by the appointment and generally has no power to make gifts of the Donor’s property. An Attorney should not make a gift to himself/herself of any of the Donor’s property, money or other assets.