- Powers of Attorney are constrained by limitations expressed in the Power itself.
- There are, however, additional restrictions imposed by the general law upon the ambit of a Power of Attorney.
- These restrictions are particularly relevant in the context of improvident or risky transactions, gifts and transactions in which the attorney has an interest.
- Ordinarily, in effecting a transaction under the authority of a Power of Attorney, a solicitor will owe a duty of care (at least) to the principal who granted the Power.
Powers of Attorney continue to generate difficulties for the community generally, and for lawyers in particular. The Australian Law Reform Commission (in its discussion paper on elder abuse) said that Powers of Attorney were being used by some as a licence to steal.
A number of LSJ articles have provided useful guidance for lawyers on matters which require consideration at the time a Power of Attorney is created and signed (e.g. a lawyer’s duties to the principal, ambit of the proposed power, capacity, undue influence etc). There are also particular issues which require a lawyer’s careful attention at the time when transactions are entered through, or with the assistance, of a Power of Attorney.