By Sam Recht

13 September 2015

A general power of attorney is commonly used to give authority to another person to act on your behalf with regard to purely financial matters. When the ‘donor’ of this authority loses the capacity to make decisions, the power given to the ‘attorney’ will cease. On the other hand, an enduring power of attorney continues to operate beyond this stage and will terminate upon the death of the donor. Accordingly, there are additional safeguards in the form of additional duties for attorneys appointed pursuant to enduring powers of attorney.

A recent judgement in DJB (Guardianship) [2010] VCAT 280 extends the duty of an attorney, under an enduring power of attorney, to keep transactional records, even beyond the stage where the donor of power dies.

An important aspect of an enduring power of attorney is the obligation on an attorney to keep an accurate record of all transactions and agreements entered into under the power. The recent Victorian Civil and Administrative Tribunal (VCAT) judgement of DJB (Guardianship) establishes that this obligation continues past the point where the creator of the authority passes away. Section 125ZB of the Instruments Act 1985 (Vic) provides that VCAT may order production of documents related to the exercise of power, either on its own, or on behalf of ‘another interested person’. Although an enduring power of attorney, itself, ceases upon the death, the tribunal found that it was still entitled to order an attorney to produce all related documents.

The reasoning of the tribunal is grounded in the aim of the legislation to protect the weak and vulnerable from exploitation. Having clear records about the usage of an enduring power of attorney assists VCAT, and others, to rest assured that any power is not being abused.

What should you know?
If you are the nominated attorney of an enduring power of attorney, it is your duty to keep clear and accurate information about your use of the authority. These records should be maintained and retained indefinitely.

If you are the beneficiary under a will and suspect foul play has taken place regarding the deceased’s enduring power of attorney, you may be entitled to seek an order from VCAT detailing how the power was used.

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