- Examine the power of attorney instrument and the attorney’s accounts.
- Consider whether section 22 of the Powers of Attorney Act 2003 affects beneficiary entitlements.
- Consider whether the estate has a cause of action against the attorney.
Executors and the solicitors who advise them need to be aware of their obligations and responsibilities to properly administer a deceased estate. If the deceased’s affairs were being managed under an enduring power of attorney (‘EPOA’) before death, the administration of the estate can be significantly more complicated, and there are traps to be avoided.
Check the power of attorney
The power of attorney instrument should be examined to check whether:
- it was an enduring power of attorney, made under the Powers of Attorney Act 2003 (‘PoA Act’) or, if made prior to 16 February 2004, under Part 16 of the Conveyancing Act 1919;
- it was properly executed;
- conditions were to be fulfilled before it became operative; and
- the attorney had authority to give gifts or confer benefits on the attorney or others and, if so, to what extent.