Responsibilities of Enduring Power of Attorney

The Core Duty: Act in the Principal's Best Interests

Every Australian state and territory imposes a fundamental obligation on an appointed attorney: act in the principal's best interests, not your own. This is a core legal duty, although the precise duties and remedies vary by jurisdiction. It means the attorney's personal preferences, convenience, or financial benefit must never influence the decisions they make on the principal's behalf.

In practice, this means the attorney must manage the principal's money as if it were someone else's. Paying the principal's bills from the principal's account is fine. Using the principal's funds to renovate your own kitchen, even if the principal "would have wanted" to help, is a breach.

Specific Obligations

Across Australian jurisdictions, the attorney's duties include:

Keep the principal's assets separate. The attorney must not mix the principal's money with their own. Separate bank accounts, separate investment portfolios, separate property dealings. Commingling funds is one of the most common forms of financial elder abuse — and one of the easiest to prove.

Keep accurate records. The attorney must maintain detailed records of every transaction — every payment, withdrawal, investment decision, and property dealing. These records protect the attorney from accusations of mismanagement, and they are the first thing a tribunal examines if a complaint is filed.

Consult the principal where possible. If the principal retains some capacity — even fluctuating or partial — the attorney should involve them in decisions to the extent they can participate. The attorney's role is to support decision-making, not replace it.

Avoid conflicts of interest. The attorney must not enter into transactions where their personal interests conflict with the principal's. Selling the principal's car to yourself at a discount, buying the principal's property through a related company, or using the principal's savings to fund a business you jointly own are all conflicts.

Follow any restrictions in the document. If the EPOA contains conditions — requiring joint approval for transactions above a certain value, prohibiting the sale of specific assets, mandating financial reports to other family members — the attorney must comply. These restrictions are legally binding once the document is executed.

What Happens When an Attorney Breaches Their Duties

The consequences of breach are serious. A family member, the principal (if they regain or retain capacity), or a state authority can apply to the relevant tribunal — NCAT, VCAT, QCAT, SAT — to investigate the attorney's conduct.

Depending on the jurisdiction and the nature of the breach, the relevant tribunal or court may be able to:

• Remove the attorney and appoint someone else (including the Public Trustee)
• Order the attorney to repay misused funds
• Revoke the EPOA entirely
• In serious cases, refer the matter to police for criminal prosecution under elder abuse or fraud provisions

Removal and replacement can mean the family loses control of the financial management. Public Trustee or State Trustee fees are jurisdiction-specific; the research examples include percentage-based charges of about 3.3% to 6%, alongside other fees.

Choosing the Right Attorney

Given the weight of these obligations, choosing an attorney is not a sentimental decision. The closest family member is not always the best choice. Consider:

• Financial competence — can they manage accounts, pay bills on time, and handle tax obligations?
• Trustworthiness — do they have a track record of responsible financial behaviour?
• Availability — can they respond to urgent banking, medical, or aged care decisions?
• Conflict potential — will their appointment create friction with other family members?

If no single person ticks every box, the principal can appoint joint attorneys (requiring both to agree) or alternative attorneys (who step in if the primary attorney is unable to act).

For a complete guide to appointing and managing attorneys — including state-specific rules and conflict safeguards — see our Enduring Power of Attorney and Guardianship in Australia guide.

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