By Jen McMillan -
Snapshot
- Solicitors play an important role in safeguarding against elder abuse.
- It is important to remember that the client is the principal.
- Conditions and limitations on a power of attorney require strict compliance.
The 2017 report of the Australian Law Reform Commission on Elder Abuse highlights the important role that solicitors play in safeguarding against elder abuse when instructed to make wills and powers of attorney. Examining some of the traps when instructed in transactions to be executed under power of attorney, can help solicitors put in place some practical steps for managing the professional risks and protecting vulnerable clients.
Tip 1: Who is your client?
Even though the instructions are likely to have been received from the attorney, it is important to remember that the client is the principal. The retainer agreement, while it may be signed by the attorney under the power, should be with the principal.
It is a fundamental ethical duty to act in the best interests of the client. The attorney should also be acting in the best interests of the principal, and ordinarily no conflict should arise. Great care needs to be taken, however, if it is unclear whether the proposed transaction is authorised under the power of attorney or if the attorney may have a personal interest in the transaction. In these circumstances solicitors should consider whether to refer the attorney for separate legal advice, and whether it is appropriate to continue to act in the transaction.
