Decide whether an attorney may make a gift or take a benefit
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- From the power and the proposed transaction, quote any clause said to authorise a gift or a benefit to the attorney, name the recipient, and describe the property. Do not say the gift or benefit is authorised.
- What the lawyer must review
- The lawyer decides and writes the advice. Under section 11 of the Powers of Attorney Act 2003 (NSW) a prescribed power does not authorise a gift of the principal's property unless the instrument expressly authorises it. The section says that question is decided by the general law on the interpretation of powers. A prescribed expression in Schedule 3 authorises the gifts that Schedule specifies. Schedule 3 was not opened. Section 12 says a prescribed power does not authorise an act that would confer a benefit on the attorney unless the instrument expressly authorises that benefit, again read with the general law, and Schedule 3 can authorise stated benefits. In Victoria, section 64 of the Powers of Attorney Act 2014 imposes a duty on an attorney for financial matters under an enduring power of attorney not to enter a conflict transaction, with stated exceptions for a gift under section 67, maintenance of a dependant under section 68, and certain joint dealings.
- Written for / version
- US
Open a jurisdiction version of this task to see which instruments apply: US
Who does what
| Role | What they do |
|---|---|
| Assistance | Do not begin AI assistance until the responsible lawyer has defined and confirmed its permitted scope. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- Quote the authorising words from the instrument. Do not paraphrase them into an authority.
- In New South Wales, do not treat a general power to do all things as express authority for a gift or a benefit. The lawyer applies sections 11 and 12.
- In Victoria, identify whether the recipient is the attorney or a relative, business associate or close friend of the attorney, because that is the conflict section 64 describes.
- Do not draft the transfer.
Sources
- Powers of Attorney Act 2003 (NSW) s 11, prescribed powers and gifts · 2026-10-22
- Powers of Attorney Act 2003 (NSW) s 12, prescribed powers and benefits to attorneys · 2026-10-22
- Powers of Attorney Act 2014 (Vic) s 64, conflict transactions · 2026-10-22
These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.