Powers of Attorney Act 2000

An attorney under an enduring power of attorney, during any period of mental incapacity of the donor – is taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and must exercise his or her powers as attorney to protect the interests of the donor – and, if he or she fails to do so, is liable to compensate the donor for any loss occasioned by the failure.

An attorney, in so far as doing so will not conflict with the attorney's duty under subsection (1) to protect the interests of the donor, must at all times exercise his or her powers under an enduring power of attorney as far as is possible and reasonable in the circumstances – in the best interests of the donor; and in consultation with the donor; and taking into account – the wishes of the donor, in so far as those wishes have been, or can be, ascertained; and what would be reasonably likely to be the wishes of the donor, if he or she were not subject to a mental incapacity.

For the purposes of this section, an exercise of a power under an enduring power of attorney is not to be taken to constitute a failure to protect the interests of the donor, and is to be taken to be in the best interests of the donor, if – it is an exercise of a power that the donor would have been likely to make if he or she were not subject to a mental incapacity; or the exercise of the power consists of providing for those persons who the donor would expect to provide for, if he or she were not subject to a mental incapacity.

An attorney under an enduring power of attorney is not competent to appoint another person to perform any functions or exercise any powers in his or her capacity as such.

An attorney under an enduring power of attorney must keep any property of the donor (apart from property held by the attorney and the donor as tenants in common or joint tenants) separate from property of the attorney. Fine not exceeding 50 penalty units.