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Breaches of Power of Attorney

Unfortunately, people do not always conduct themselves lawfully when appointed as a person’s Power of Attorney. In these cases, breaches of Power of Attorney are deemed to occur.

Responsibilities of Enduring Power of Attorney

If you are appointed as an Enduring Power of Attorney, there are a number of duties and responsibilities in relation to the appointment. The overarching responsibility is to act in the principal’s best interest and make all lawful decisions on their behalf.

What happens when someone abuses this legal power?

Some people who are appointed as an attorney conduct themselves in a manner that is outside the scope of their responsibility as an attorney or misuse the principal’s assets. Did you know that breaches of Power of Attorney also may equate to acts of Elder abuse? Below are some examples of when an attorney is breaching their responsibilities:

  • Withdrawing funds from the principal’s bank account and using them for the attorney’s own personal gain.
  • Mixing the principal’s funds with the attorney’s.
  • The attorney selling assets to themselves or a related party for under market value.
  • The attorney isn’t providing a proper account of the principal’s financial affairs.

What to do to restore justice in instances of breaches of Power of Attorney

There are many different remedies the court may oppose if it has found an attorney has breached their duties. These include:

  • An order that the attorney personally repays the money or asset to the principal or their estate if they have passed away.
  • Provide evidence of monies spent of the Principal’s, to ascertain what transactions the attorney has undertaken on the Principal’s behalf.
  • To remove the attorney or alter the attorney’s power.

If you feel someone has breached their duties as Power of Attorney, contact our team to help you explore your rights.

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Dispute Power of Attorney rights where power is misused

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    Common FAQ's for breach of Will

    • What is a breach of a will in Queensland?

      A breach of a will occurs when the terms of a deceased person’s will are not properly carried out. In Queensland, beneficiaries have legal rights to enforce the terms of a will and hold executors accountable for any failure in their duties under the Succession Act 1981 (Qld).

    • What are the most common breaches of a will in Queensland?

      The most common breaches may include an executor failing to distribute the estate within a reasonable time; an executor misappropriating or mismanaging estate assets; distributing assets to the wrong beneficiaries; failing to pay estate debts before distributing the estate; not acting in the best interests of all beneficiaries; and ignoring the specific instructions left in the will regarding property, personal items or business interests.

    • Can an executor be removed for breaching their duties in Queensland?

      The Queensland Supreme Court has the power to remove an executor who has breached their fiduciary duties, is acting contrary to the interests of the beneficiaries, is incapable of carrying out their role, or has a conflict of interest that prevents them from acting impartially.

      The court may appoint an independent administrator in their place. An application to remove an executor is a serious legal step and you should seek estate litigation advice before proceeding.

    • Can a beneficiary take legal action if estate assets have been mismanaged or lost?

      In short, Yes. If an executor has negligently or deliberately mismanaged estate assets. An example is by selling property at below market value, failing to invest estate funds appropriately, or improperly transferring assets. Executors have a legal duty to act in the best interests of the estate and all its beneficiaries, and they can be held personally liable for breaches of that duty.

    • Do I need a lawyer to deal with a breach of a will in Queensland?

      While there is no legal requirement to engage a estate litigation solicitor, breach of will matters involve complex legal procedures in the Queensland Supreme Court and the consequences of getting it wrong can be significant. This may include losing your right to claim, incurring legal costs, or having the estate distributed before you can act. ORG Lawyers offers a FREE initial consultation to assess your situation, explain your options, and advise whether legal action is warranted. In eligible matters, we also offer a No-Win, No-Fee arrangement.

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