Powers of Attorney Act, 1996

Scope of authority of attorney under enduring power.

6.—(1) An enduring power may confer general authority (as defined in subsection (2)) on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on the attorney authority to do specified things on the donor's behalf and the authority may, in either case, be conferred subject to conditions and restrictions.

(2) Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to the restriction imposed by subsection (5) and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.

(3) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may execute or exercise any of the powers or discretions vested in the donor as a tenant for life within the meaning of the Settled Land Act, 1882.

(4) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may act under the power for the attorney's benefit or that of other persons to the following extent but no further, that is to say, the attorney—

(a) may so act in relation to himself or herself or in relation to any other person if the donor might be expected to provide for his or her or that person's needs respectively; and

(b) may do whatever the donor might be expected to do to meet those needs.

(5) Without prejudice to subsection (4) but subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may, if specific provision to that effect is made in the instrument, dispose of the property of the donor by way of gift to the following extent but no further, that is to say, by making—

(a) gifts of a seasonal nature or at a time, or on an anniversary, of a birth or marriage, to persons (including the attorney) who are related to or connected with the donor, and

(b) gifts to any charity to which the donor made or might be expected to make gifts,

provided that the value of each such gift is not unreasonable having regard to all the circumstances and in particular the extent of the donor's assets.

(6) An enduring power may also confer authority on the attorney to make any specified personal care decision or decisions on the donor's behalf.

(7) (a) Any personal care decision made by an attorney on behalf of a donor shall be made in the donor's best interests.

(b) In deciding what is in a donor's best interests regard shall be had to the following:

(i) so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so;

(ii) the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor;

(iii) so far as it is practicable and appropriate to consult any of the persons mentioned below, their views as to the donor's wishes and feelings and as to what would be in the donor's best interests:

(I) any person named by the donor as someone to be consulted on those matters;

(II) anyone (whether the donor's spouse, a relative, friend or other person) engaged in caring for the donor or interested in the donor's welfare;

(iv) whether the purpose for which any decision is required can be as effectively achieved in a manner less restrictive of the donor's freedom of action.

(c) In the case of any personal care decision made by an attorney it shall be a sufficient compliance with paragraph (a) if the attorney reasonably believes that what he or she decides is in the best interests of the donor.