Choosing an attorney

If you are drafting an Enduring Power of Attorney, be very clear that you are acting for the donor. You have a responsibility to explain how each different power of attorney works, what options are available and the responsibilities of attorneys, agents and guardians.

Provide your client with a list of commonsense questions to consider carefully when they are appointing an attorney. For example, has the person they are considering appointing agreed to be their attorney? Do they have a history of alcohol, drug abuse or gambling? What is their attitude to money? Or to paperwork? Are they likely to outlive the donor? Are they in regular contact with the donor, or do they see them only rarely?

It may be a good idea not to execute a document on the day but to allow the client time to go away and think about the contents and their choice of attorney, and then come back another time to formalise it.

Are relatives best?

The best person for a client to appoint as attorney will not necessarily be a relative. It cannot be assumed that family members have the necessary knowledge and skills to make good decisions, nor that they will act in the best interests of an older person with impaired capacity. In the case of an Enduring Power of Attorney (Financial), it might be advisable for the power of attorney to be held jointly so that actions must be agreed upon by more than one person. (If siblings are in conflict, however, it is not advisable to appoint them as joint attorneys.)

You may be able to assist in educating an attorney by giving them information about their roles and responsibilities, which include keeping accurate records, avoiding conflicts of interest, acting in the donor’s best interests. Explain that if they fail to do this they may find themselves before VCAT.