Section 125D of the Instruments Act provides as follows:
“Requirement to keep records
An attorney under an enduring power of attorney must keep and preserve
accurate records and accounts of all dealings and transactions made under the
power.”
This refers to enduring powers of attorney, but there would be a common law duty in relation to all powers to keep records. Even if there were no mandatory obligation, an attorney should in practice always keep records on the basis that the attorney should always be able to justify what he or she has done should there be any challenge by a disaffected person.
The records do not have to be audited, and they do not have to be kept in any particular way, nor do they have to be overly detailed. It may be sufficient to keep an exercise book recording all transactions conducted under the power of attorney, and the date of the transaction.
The keeping of records may in fact be more honoured in the breach than the observance, but nevertheless the obligation is a mandatory one.
© Peter Gauld LL.B.
Peter J. R. Gauld LL.B
Gauld & Co. Elder Law Solicitors
Suite 5, 1st Floor,
838 Glenferrie Road,
Hawthorn, Melbourne, Australia, 3122.
03 9024 3868
0401 230 711
gauld.co@gmail.com