Are there no limits** to an Attorney’s Powers?

Previous posts have looked at various aspects of powers of attorney, see for example:

1. EPAs and conflicts of interest; and
2. Incapacity and SMSF control.

A validly appointed financial attorney has extremely wide powers in relation to what they may do on behalf of the donor.

Following on from last week’s post there were questions raised about the limitations imposed on attorneys.

While the rules in each state are slightly different, generally speaking, an attorney is prohibited from doing any of the following on behalf of a donor:

1. acting as a director in place of the donor – a directorship is a personal role and cannot be delegated;
2. voting in government elections;
3. signing affidavits in relation to information that is known only to the donor;
4. marrying or divorcing a spouse;
5. making a will on behalf of the donor; and
6. entering into transactions where the donor’s interests conflict with the attorney's, unless the document appointing the attorney waives potential conflicts of interests. 

While most of the prohibitions on attorney conduct are clear, there remains some confusion about the ability of an attorney to implement or change a binding death benefit nomination for the donor’s superannuation entitlements.

Some of the key issues in this regard were also explored in an earlier post.

** For the trainspotters, ‘no limits’ is a line from the Bjork song from 2007, namely ‘Hope’.