32Duties of attorney under enduring power of attorney

32 Duties of attorney under enduring power of attorney

(1)  An attorney under an enduring power of attorney, during any period of mental incapacity of the donor –

(a) is taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and

(b) must exercise his or her powers as attorney to protect the interests of the donor –

and, if he or she fails to do so, is liable to compensate the donor for any loss occasioned by the failure.

(1A)  [Section 32 Subsection (1A) inserted by No. 39 of 2013, s. 14, Applied:01 Feb 2014] An attorney, in so far as doing so will not conflict with the attorney's duty under subsection (1) to protect the interests of the donor, must at all times exercise his or her powers under an enduring power of attorney as far as is possible and reasonable in the circumstances –

(a) in the best interests of the donor; and

(b) in consultation with the donor; and

(c) taking into account –

(i) the wishes of the donor, in so far as those wishes have been, or can be, ascertained; and

(ii) what would be reasonably likely to be the wishes of the donor, if he or she were not subject to a mental incapacity.

(1B)  [Section 32 Subsection (1B) inserted by No. 39 of 2013, s. 14, Applied:01 Feb 2014] For the purposes of this section, an exercise of a power under an enduring power of attorney is not to be taken to constitute a failure to protect the interests of the donor, and is to be taken to be in the best interests of the donor, if –

(a) it is an exercise of a power that the donor would have been likely to make if he or she were not subject to a mental incapacity; or

(b) the exercise of the power consists of providing for those persons who the donor would expect to provide for, if he or she were not subject to a mental incapacity.