By Peter Bahlmann

No, is the general answer.

As an attorney appointed under a Power of Attorney in New South Wales you are required to deal with the property and finances of the principal for the benefit of the principal in the principal’s best interests.

Unless there is an express ‘benefits’ clause in the Power of Attorney instrument, the attorney may not take any benefit from the principal’s property and finances.

Even if the instrument includes a benefits clause permitting the attorney to take a benefit the attorney must be meticulous in only taking permitted benefits.

Under section 11(2) of the Powers of Attorney Act 2003 the principal may authorise their attorney to give reasonable gifts.

Under section 12(2) of the Powers of Attorney Act 2003 the principal may authorise their attorney to confer benefits on the attorney to meet their reasonable living and medical expenses.

If the additional powers above under sections 11 and 12 are conferred on the attorney then the attorney is constrained to giving only reasonable gifts out of the principal’s property and finances and taking only their reasonable living and medical expenses.

What is reasonable in each of those situations will depend on all the circumstances and great care should be taken.

Guirguis v Girgis [2020] NSWSC 1468

A principal may include in the instrument an even broader benefits clause as was the case in Guirguis v Girgis. In that case, the principal included an express provision allowing the attorney, her brother Michael, to deal with her property and finances “or do any other act, whereby a benefit is conferred on him”.

Michael used the instrument to purchase a number of properties in the principal’s name, but also one property in his own name which the attorney used as his residence and which he subsequently transferred to his wife for no consideration.

In these proceedings, the principal called Michael to account.

Michael’s wife, who had taken the property without any involvement or knowledge of any breach of any obligation was permitted by the Court to keep the residence held in her name.

However, Michael was required to account to the principal for the value of the property transferred due to the fact that Michael owed a fiduciary obligation to the principal. That is, at law, an attorney owes to a principal duty of good faith. The Court found that while the attorney certainly had the power to deal with all the property as he did, it did not exonerate him from his fiduciary duty and to give account to the principal.

A benefits clause in a power of attorney must be considered very carefully and it is always prudent not to take any benefit except with the express consent of the principal wherever possible.

The experts at Hansons Lawyers are available to guide you through the stages of appointing an attorney, renewing your power of attorney documents, and can also provide advice on what to expect when you have been appointed an attorney. Please contact us today to organise an appointment if you are in need of legal help.