What to do if you suspect an attorney isn’t properly using their powers, or has taken money or assets?
In brief, an Enduring Power of Attorney enables a person (who is called ‘the principal’) to authorise an attorney to act on their behalf, and this power continues in operation even if the principal loses capacity. Of course, once a principal has lost capacity, they cannot effectively oversee how their attorney uses the power – and so this is why it’s important to pick an attorney who can be entrusted not to abuse their power.
Generally speaking, an attorney owed a duty of absolute loyalty to the principal – meaning that the attorney must place the principal’s interests above their own, and always act in the principal’s best interests. Unfortunately, not all attorneys are above reproach, and may abuse their position under the Enduring Power of Attorney. Signs that may indicate abuse of power by an attorney may include:
- Significant withdrawals from the principal’s bank accounts;
- Cash and valuables missing from the principal’s household;
- Suspicious changes to important documents or assets (will, property titles, bank account or share titles);
- Significant ‘gifts’ of the principal’s property to the attorney (or the attorney’s close relatives or friends); and
- Financial activity the principal couldn’t have authorised, or exceeding the reasonable care and maintenance needs of the principal.
- Restricting access to the principal; and
- Neglect in medical and personal care of the principal.
Where you suspect an attorney is abusing their power, it is critical to act quickly. Not only could the principal’s health and welfare be at risk, but recovery of financial abuses is often time-sensitive. Queensland’s Powers of Attorney Act 1998 includes a statutory remedy, where an attorney can be ordered to compensate a principal for abuses and losses caused by the attorney – but if the attorney has spent the money and has no other assets, then it may not be possible to recover the principal’s money or assets.
If you suspect an attorney has abused their powers, you are able to report those concerns to the Office of the Public Guardian, who may investigate the attorney, and depending on their findings, may take action to remove the attorney. Alternatively, please contact us and we can advise you on the means to safeguard your concerns from abuse or recover assets.
Also, you may be an attorney facing allegations that you’ve abused your position – if you are concerned about a potential dispute, it is often best to to get in front of the issue and be proactive. If this occurs, please contact us to discuss how we can assist you.
Article was written by Thomas Ashton, Senior Associate
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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