EPAs—attorney's duties and powers
EPAs—attorney's duties and powers

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • EPAs—attorney's duties and powers
  • Duties
  • Authorities
  • General authority
  • Authority over part of the donor's property
  • Authority over specific property
  • Authority to act as a personal representative
  • Authority in respect of trusts
  • Powers
  • Needs
  • More...

Even though enduring powers of attorney (EPA) can no longer be created, they will be available for use and be subject to the law for some time yet. Equally, the actions of attorneys under those powers will also subject to scrutiny.

Duties

In one respect EPAs are no different to any other power of attorney: an EPA attorney is subject to the general duties imposed on those other attorneys, which are to:

  1. act in accordance with the terms of their authority

  2. act in the name of the donor

  3. not exceed their authority

  4. act with due care and skill

  5. not delegate their office

  6. not put themselves in a position where their duties as attorney conflict with their own personal interests or their duty to another principal

  7. not take advantage of their position to obtain a benefit for themselves

  8. not accept secret commissions

  9. keep the donor's money separate from their own

  10. account to the donor

  11. permit the donor to inspect and take copies of records kept by the attorney relating to acts done in the name of the donor, even after the termination of the attorney's authority

It may, of course, not be possible to discharge all these duties if the donor is no longer mentally capable but there is an important additional duty imposed on an EPA attorney as soon as they have reason to believe that the

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