LAMAn Attorney acting pursuant to a Power of Attorney is required to comply with any and all conditions and limitations of the Power of Attorney instrument. A failure to do so, can result in the Attorney’s actions being declared unauthorised which in turn can lead to unintended consequences as the following case illustrates.

The deceased died in 2008. By her Will, the deceased gifted her interest in some real estate to her daughter. Some years before her death in 2002, the deceased had granted an enduring Power of Attorney to her son. In 2006 the deceased’s son signed paperwork as Power of Attorney for the deceased to sell the parcel of real estate that was the subject of a gift in the deceased’s Will. Importantly the Power of Attorney contained a condition or limitation in these terms:

“This Power of Attorney shall only be used upon my treating Medical Practitioner certifying that I am no longer physically or mentally able to sign documents or look after my own affairs.”

The son took no legal advice before acting under the Power of Attorney. He obtained a letter from the deceased’s treating medical practitioner which provided:

“… Over the last twelve months, we have noticed significant deterioration in her mental state and recent testing show [sic] that she is suffering from significant dementia. She has reached the stage which I feel that she may not be capable of looking after her own affairs.” [emphasis added]

Pursuant to legislation, the authority bestowed upon the son to act as Attorney for the deceased pursuant to the Power of Attorney was subject to compliance with the condition or limitation that the Power of Attorney was not to be used unless the deceased’s treating medical practitioner gave a certificate that the deceased was no longer able to sign documents or look after her own affairs. The condition or limitation did not require a medical opinion. It required certification. “The formality associated with that requirement added to the protection of the deceased that the power of attorney would not be used prematurely”. In this case the Court held that the Attorney had no authority to sell the deceased’s real estate because the requirement for a certificate from the deceased’s medical practitioner was not satisfied by the doctor’s letter. Ultimately the Court ordered that the deceased’s gift of her interest in real estate to her daughter in her Will may be traced through the proceeds of sale of the real estate which was ordered to be paid to the daughter in substitution for the specific gift in the deceased’s Will.

This case serves to highlight the importance for persons acting as an Attorney to adhere strictly to the conditions and limitations of the Power of Attorney instrument. At Everingham Solomons, we have the expertise to advise you in relation to the issues involving Power of Attorney, because Helping You is Our Business.

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