Enduring powers of attorney and professional responsibility
At the recent NZLS CLE Ltd Elder Law Intensive, I presented a session in relation to professional duties in respect of enduring powers of attorney.
One issue that came up was the recent change to the Protection of Personal and Property Rights Act 1988 (s 94A(4A) which allows a practitioner, where two people wish to appoint the other as attorney, to witness both signatures as donors and attorneys (as long as there is not more than a negligible risk of there being a conflict of interest).
If a practitioner is acting for both parties pursuant to s 94A(4A), this does not alter the professional obligations set out in rule 6.1 and its sub-clauses of the Conduct and Client Care Rules 2008:
- A lawyer must not act for more than one client on any matter in any circumstances where there is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the clients;
- Subject to the above, a lawyer may act for more than one party in respect of the same transaction where the parties have given informed consent;
- If a conflict with a lawyer’s professional duties arises, then the retainer with both clients must be terminated; and
- A lawyer may continue to act for one of the clients, once that client has received independent advice and both parties have consented to the lawyer continuing to act.
Informed consent is defined in the Conduct and Client Care Rules 2008 under rule 1.2. It means consent given by the client after the matter in respect of which the consent is sought and the material risks of and alternatives to the proposed course of action have been explained to the client and the lawyer believes, on reasonable grounds, that the client understands the issues involved.
In summary, practitioners witnessing both a donor and attorney’s signature under s 94A(4A), must also have the parties sign a waiver of independent legal advice. They should also see the clients separately in case there is any issue of undue influence or duress.
Last updated on the 30th June 2017