An Enduring Power of Attorney provides a safe guard for the future and prevents the need for the appointment of an administrator.
“Donor” the person who has appointed another to act in their place.
“Donee” the person who is appointed to act.
example John Citizen (Donor) appoints Jane Citizen (Donee)
A Donee does not have authority to:
- do any act that requires the Donor’s personal skills or discretion e.g. make a Will,
swear an affidavit;
- do any act the Donor must do personally e.g act as Trustee;
- make a guardianship or lifestyle decisions on behalf of the Donor;
- do any act which is illegal;
- perform the functions of a director or secretary of a company on behalf of the Donor unless authorised by the Memorandum & Articles of Association of the company;
- appoint a substitute Donee.
A Donee is obliged to:
- exercise their powers of attorney with reasonable diligence to protect the
interests of the Donor. Can be held liable to the Donor for any loss incurred;
- keep accurate records, receipts and accounts of all dealings and transactions made as Donee; and
- cannot renounce as Donee during any period when the Donor is legally incapacitated (except on order by the Guardianship and Administration Board); and
- will be in breach of their obligations if they:
(I) make a gift of the Donor’s money or assets to another person;
(II) dispose of any of the Donor’s assets where full market value has not been obtained;
(III) forgive a loan owing to the Donor by another person to the Donee;
(IV) discharge a mortgage where all money owing to the Donor has not been paid in full;
- Subject to any restrictions imposed on the Donee, the Donee may be required to make decisions as follows:
(i) expenditure in the Donor’s best interest;
(ii) purchase, sale, lease, maintenance or improvement of property;
(iii) payment of debts;
(v) arrangement and payment of insurance;
(vi) operation of bank accounts;
(vii) receipt of income;
(viii) management of business interests;
(ix) shared voting rights;
(x) entering into, completing or terminating a contract;
(xii) social security entitlements.
When a Donee signs documents on behalf of the Donor the Donee must produce the original Enduring Power of Attorney together with forms of identification i.e. Drivers Licence. The Enduring Power of Attorney must be sighted by the person before whom the Donee signs.
The Donee must sign their own signature and write underneath “as Attorney for …., Document No…….” The document is on top right hand corner of the back page of the Enduring Power of Attorney. In some instances a copy of the Enduring Power of Attorney be retained at all times by the Donee.
An Enduring Power of Attorney is only effective while the Donor is alive. On death of the Donor, the Enduring Power of Attorney is no longer effective. From the date of death onwards, the Executor of the Will of the Donor has the control of all assets of the deceased (Donor). The Donee can be held liable if they act under the Power of Attorney after the date of death.