Functions of an attorney
On the surface it all seems deceptively simple. As
attorney, you have legal authority to make property and financial
decisions on behalf of the donor. The form says that you can
carry out those functions can lawfully be carried out by an
attorney.
Then you have to look at the restrictions. The first place
to look for restrictions is in the form itself as there is
provision to make express restrictions in relation to the powers
granted to the attorney.
The next restriction is in the nature of the power of attorney
itself in that it does not cover personal, lifestyle or treatment
decisions. If these matters are to be the subject of someone
else exercising powers then it is necessary for the person in
question to complete an enduring power of guardianship.
There are some matters that and attorney cannot do
and an attorney needs to know the extent of their authority.
Some examples of things that the attorney cannot do are -
- swear an affidavit
- make a statutory declaration,
- make a Will,
- vote, or,
- exercise powers as trustee or executor;
- deal with any trust property
- perform the functions of a company officer which office the
donor or may have had;
The easier issues for the attorney are the commercial ones with
outside third parties. The more difficult ones are those that
relate to more family and domestic issues. This is where it
is really most important to have a documented PLAN to address these
difficult and sometimes controversial issues. Without this
the attorney can often be a very difficult position indeed.