The donee must keep full and proper records of everything he or she does, and must be seen to be acting in the best interests of the donor at all times. Failure to keep these records is an offence with a penalty of up to $1000 [Powers of Attorney and Agency Act 1984 (SA) s 8]. A donee who acts improperly can be held personally responsible to pay for any losses caused, and can even be found guilty of a criminal offence.
A donee cannot be paid for work done on the donor's behalf, except any out of pocket expenses directly connected with carrying out the power of attorney. Receipts should be kept to prove these costs. A donee may do all the things authorised in the power of attorney, but may not exceed the authority given in the power of attorney. The donee only has the power to deal with the financial matters, and does not have the power to give consent to medical treatment for the donor.
Where a donee acts on a reasonable interpretation of the wording of the power of attorney, the donor is bound by the acts of the donee and the donee is protected. A donee who acts on an unreasonable interpretation of the wording of a power of attorney can be sued by those he or she deals with for breach of warranty of authority. In this case the donee's acts will not affect the donor and any property disposed of when there was clearly no authority for it in the power of attorney can be recovered. If there is doubt as to the wording of a power of attorney, seek legal advice.
By agreeing to act as a donee, the donee is not accepting financial liability for the donor, for example, a donee does not have to pay a donor's bills from their own pocket. Rather, a donee pays the donor's bills from the donor's own money. If there is not enough money to pay all the bills, the donee is not personally liable but may make other necessary arrangements.
For details on the duties of an Enduring Power of Attorney see the Alliance for Prevention of Elder Abuse's pamphlet entitled Duties and Responsibilities of your Enduring Power of Attorney.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.