If you review the suggested framework for a Power of Attorney you will see that a Power of Attorney consists of various parts, including provisions dealing with identification of various officeholders, commencement and termination of the Power of Attorney, conditions of appointment, identification of tasks an agent may perform and similar.
By contrast, a direction acts to qualify the effect and operation of those other matters set out in the Power of Attorney.
When reading a direction, it is typically best to:-
Giving meaning and effect to the terms of any legal document is an art for lawyers.
Unless the meaning of a direction is entirely clear it may be open to closer scrutiny, potentially resulting in unforeseen outcomes.
Directions might deal with:-
Where conditions of appointment are imposed under a Power of Attorney, it may be good practice to useful to:-
the position is qualified by considerations such as good faith defences
the prospect of different outcomes in different circumstances is a factor, for example outcomes might be different where:-
These examples conveniently illustrate the significance of the precise terms of the Power of Attorney.
The effects of the inclusion or exclusion of any positive duty to act should be considered in the context of any direction, particularly if the agent perform a positive act to comply with the direction.
Here are examples of inconsistent directions:-
|My agent can only exercise authority if I have capacity after 1 January 2036
|My agent may exercise authority after 1 January 2036 whether or not I have capacity
The only way to be certain that a Power of Attorney does not contain inconsistent directions is to read the Power of Attorney as a whole.
For example, if a direction and limitation are inconsistent, this would not be apparent unless the whole of the Power of Attorney had been read, probably in conjunction with the effects of the other terms of the Power of Attorney that the direction and limitation seek to qualify.
Many lawyers would recommend drafting of directions and related provisions in a Power of Attorney be done by a lawyer,given their impact effects and need to be appreciated as part of the whole terms.