This article discusses whether a power of attorney strata council role is permitted, confirming that an Enduring Power of Attorney cannot act on behalf of an elected council member and that council duties must be performed personally.
Question: A unit owner and Council member’s son is his Enduring Power of Attorney (EPA). Does an EPA extend to making decisions on the Council of Owners for the whole of our strata?
A unit owner and Council member permits his son, in the capacity of his Enduring Power of Attorney, to represent him on our Council of Owners.
He has been permitted to do anything on the COO that his father would do.
The father and son are interchangeable, the father goes to the SAT hearings, while the son does the day-to-day tasks.
It is my understanding an Enduring Power of Attorney (commonly known as an EPA) is a legal document a person can make that gives another person/s or organisation the legal authority to make financial and/or property decisions on their behalf. If an EPA can do anything with your property which you yourself could do, does this extend to making decisions for the whole of our strata.
Answer: Only the father can act as a council member and the son cannot perform duties on his behalf pursuant to an EPA.
An EPA provides the person to whom the EPA is given (‘donee’) with the authority to make financial and property decisions on behalf of the person that gave the EPA (‘donor’). However, the EPA is limited, and the donee cannot perform acts for the donor that requires the donor to exercise their personal skill or discretion such as acting in the donor’s capacity as trustee, executor, company director or secretary.
A member of the council of a strata company is elected to exercise their personal skill and discretion in performing the functions of the strata company much like a company director.
Section 137 of the_ Strata Titles Act_ place duties on a council member that requires them to act personally and so they cannot appoint someone to act on their behalf. These duties are acting honestly, with care and diligence, not making improper use of their position and disclosing any conflicts of interest.
Section 136 of the_ Strata Titles Act_ provides that a corporation that is a member of a council may appoint an individual to act on its behalf, but no such provision is made for an individual to appoint another person to act on its behalf.
For these reasons an elected council member cannot appoint someone else to act on their behalf to perform their duties.
To answer the question directly; only the father can act as a council member and the son cannot perform duties on his behalf pursuant to an EPA. If the son performs the father’s duties as a council member under a power of attorney, these acts of the son may be invalid and can cause problems for the strata company.
This post appears in Strata News #634.
Eduard Ferreira & Claudia Merenda
Douglas Cheveralls Lawyers
E: eduard@dclawyers.com.au
P: 08 9380 9288
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