---
title: "Decide whether an attorney may make a gift or take a benefit"
url: "https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/decide-whether-an-attorney-may-make-a-gift-or-take-a-benefit"
type: "task"
site: "AI Law Framework"
id: "A18-FL20261022-2"
practice_area: "Elder Law & Powers of Attorney / Guardianship"
tier: "red"
lawyer_review: "required"
last_reviewed: "2026-10-22"
---

# Decide whether an attorney may make a gift or take a benefit

> 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.

Canonical page: https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/decide-whether-an-attorney-may-make-a-gift-or-take-a-benefit  
Last reviewed: 2026-10-22

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Elder Law & Powers of Attorney / Guardianship](https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship.md) |
| Human involvement | Red: Lawyer writes; AI may check, clarify or collect data |
| 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 / versions | 1 jurisdiction versions below |

## Checking plan

**Lawyer-led judgement**

The lawyer makes the substantive assessment. Any permitted AI assistance remains supporting work with its own checks.

- What the AI does: 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 does: 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 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.
- Who reviews: Responsible lawyer with competence in the matter
- Basis: Practical workflow informed by the linked primary sources; the traffic light and working checks are editorial guidance, not a court classification.
- Why: The level reflects what the work is, the consequence of an error, and how much of the output the lawyer must independently re-derive.
- Restriction: The lawyer makes the substantive assessment. Any permitted AI assistance remains supporting work with its own checks.

## Checks the lawyer makes

1. Quote the authorising words from the instrument. Do not paraphrase them into an authority.
2. 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.
3. 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.
4. Do not draft the transfer.

## Notes

- 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.

## Sources

- [Powers of Attorney Act 2003 (NSW) s 11, prescribed powers and gifts](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/poaa2003240/s11.html) (checked 2026-10-22)
- [Powers of Attorney Act 2003 (NSW) s 12, prescribed powers and benefits to attorneys](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/poaa2003240/s12.html) (checked 2026-10-22)
- [Powers of Attorney Act 2014 (Vic) s 64, conflict transactions](https://classic.austlii.edu.au/au/legis/vic/consol_act/poaa2014240/s64.html) (checked 2026-10-22)

## Jurisdiction versions

| Jurisdiction | Level |
| --- | --- |
| [United States](https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/decide-whether-an-attorney-may-make-a-gift-or-take-a-benefit/united-states.md) | Yellow |

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*