Letter No. 02 of 06Victoria, then New South WalesAppointed by: the person themselves
Re: your appointment
You have been appointed as an enduring attorney
An enduring attorney has legal authority to make decisions for the person who appointed them, called the principal, and in Victoria only about the matters the appointment covers and only once the role has started. The power is called enduring because it keeps working after the principal can no longer make the decisions themselves; it ends when they die.
The duties are close to those of anyone trusted with someone else’s money: honesty, care, separate accounts and records. What follows sets them out as Victoria’s Office of the Public Advocate (OPA) explains them, then how New South Wales puts them.
General information, not legal or financial advice. An attorney’s powers come from the appointment form and the law of the state it was made in. In Victoria, OPA’s Advice Service can explain them; in New South Wales, NSW Trustee and Guardian or a solicitor can.
§1Read the form first
In Victoria, the appointment form settles three things: which matters the attorney covers (financial, personal, both, or only some), when the power starts, and any conditions or instructions the principal attached. Financial matters include paying expenses, buying or selling real estate for the principal and giving them money for their own use. Personal matters cover things like where and with whom the principal lives. Medical treatment is not a personal matter: only the principal’s medical treatment decision maker can decide that.
The start can differ by matter: immediately for money, say, and only once the principal loses capacity for personal decisions. If the power starts straight away, the principal keeps making their own decisions and directs the attorney; paying their bills doesn’t stop them withdrawing their own money. If it starts on loss of capacity, the attorney may be asked for evidence, such as a medical certificate, before acting.
When two or more attorneys are appointed, the form says whether they act jointly, severally, jointly and severally, or by majority. If it says nothing, they act jointly.
§2Deciding for someone else
Once the principal can’t make a decision, the Victorian Act sets the method. In OPA’s summary, the attorney:
- chooses the option that restricts the principal’s own ability to decide and act as little as possible;
- gives the principal practicable support to take part in the decision as far as they can;
- gives effect to the principal’s wishes wherever that is practicable and appropriate; and
- acts to promote the principal’s personal and social wellbeing, which includes their dignity, their relationships, and their religion, values and culture.
§3The duties, and what an attorney cannot do
| The attorney must | The attorney cannot |
|---|---|
| Act honestly, diligently and in good faith, with reasonable skill and care | Make medical treatment decisions, unless also appointed as medical treatment decision maker |
| Keep accurate records and accounts of every financial dealing, and of material personal ones | Hand the power to someone else; only an alternative attorney already named can step in |
| Keep their own property separate from the principal’s (jointly owned property aside) | Vote, or make or revoke a will or an enduring power of attorney, for the principal |
| Keep the principal’s information confidential, unless the appointment or the law allows otherwise | Consent to a marriage, decide an adoption, or manage the principal’s estate after death |
| Avoid acting with a conflict of interest, unless VCAT has authorised it, or the principal did while they had the capacity to make that decision | Be paid from the principal’s money unless the enduring power of attorney specifically authorises it |
Every item in the table is drawn from the guide, which lists more prohibitions at its end.
Two money rules catch people out. A gift from the principal’s property is allowed only when it is reasonable for their finances, and either a seasonal or special-occasion gift to a relative or close friend, or the kind of donation the principal made or might be expected to make. A gift with a total value over $100 to the attorney, or to the attorney’s relative, close friend or connected organisation, needs a written record of the amount and the recipient. And a dependant of the principal can be provided for only if the appointment authorises it, and then with no more than is reasonable unless the principal has said otherwise.
Example: a month of records (invented figures, for illustration)
An attorney for financial matters pays the principal’s bills from the principal’s own account and keeps a line for each dealing, with the receipt filed behind it.
| Date | From the principal’s account | Amount |
|---|---|---|
| 3 Sept | Electricity bill | $212.40 |
| 10 Sept | Pharmacy, receipt kept | $38.15 |
| 17 Sept | Council rates instalment | $486.00 |
| 24 Sept | Groceries, paid apart from the attorney’s own | $94.60 |
| Total | $831.15 |
The groceries line is the one the guide singles out: buying the principal’s shopping in the same transaction as one’s own, and paying for it from either purse, breaks the duty to keep property separate.
If an attorney’s failure causes the principal a loss, VCAT or the Supreme Court can order compensation, and using the power dishonestly, to get a financial advantage for anyone or to cause the principal or someone else a loss, can be a criminal offence. Resigning, or ceasing to be eligible, has its own steps under the Act.
§4New South Wales: the same trust, set out differently
In NSW an attorney makes only financial and legal decisions; health, lifestyle and accommodation decisions belong to an enduring guardian. NSW Trustee and Guardian describes an attorney as legally required to act in the principal’s best interests, and its checklist for choosing an attorney looks for someone who will honour the same duties: no conflicts such as using the principal’s money for one’s own benefit, respect for the principal’s views and culture, staying within any limits in the document, accurate records of every transaction, and money kept apart.
One NSW step has no Victorian twin in this letter: if the attorney is to deal with the principal’s NSW real estate, the power of attorney must be registered with NSW Land Registry Services, and the attorney then uses the registration number when signing for the principal.
For how these duties apply to one appointment, the office to ask in Victoria is:
Office of the Public Advocate, Victoria
Advice Service 1300 309 337, 9am to 3pm, Monday to Friday. OPA’s information for attorneys. In New South Wales: NSW Trustee and Guardian on powers of attorney.