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Power of Attorney Disputes

Legal Helpline: ☎ 1800 529 835

 

Our Australian solicitors deal with disputes involving power of attorneys (POA). These disputes include the construction of a POA; fraud; misappropriation of funds; misuse of assets; issues relating to mental capacity. If you have any concerns regarding a power of attorney, you should seek legal advice. Contact our legal team by calling the free helpline or complete the online contact form.

What is a Power of Attorney?

Any person who has full legal capacity can delegate authority to another person to perform lawful acts by means of a Power of Attorney, unless there is a specific law which restricts the right. The person giving the POA must also have mental capacity to understand both the act of appointment and the nature of the powers that the attorney is being given.

The person giving the power is known as “the principal” and the person who receives the power is known as “the attorney”. The principal can revoke that power. In Australia, there is legislation enacted in each State and Territory which governs the creation of Powers of Attorney.

In some states, a POA needs to be registered if it deals with land. There are also legislative provisions which relate to the witnessing and execution of a POA.

Enduring Power of Attorney

It used to be the case that a POA would no longer be effective if the principal lost their mental capacity. However, the legislation now allows the principal to create an enduring power of attorney so that if the principal loses their mental capacity, the POA would still be effective.

Common types of disputes

Disputes often arise when the attorney uses the power of attorney inappropriately, for their own benefit. This is common in elder abuse cases where a child may use their parent’s power of attorney to help themselves to principal’s money. Other examples include: when a person is induced to make a POA by dishonesty or undue influence; when an attorney continues to use the POA even though it has been terminated or suspended by the principal.

A principal can limit the scope of the attorney’s power for example, by specifying that the POA can only be used for a specified transactions or in relation to specific investments, or for a defined period. Problems can arise if the POA is used for transactions not covered by its terms.

There may be recourse through Court or Tribunal action in these circumstances.

Disagreements between Attorneys

It is possible for the principal to appoint more than one attorney, and that the attorneys can act jointly and severally, or independent of each other. Sometimes there may be disputes between the appointed attorneys regarding financial decisions. Legal advice should be sought.

Medical Power of Attorney (or Enduring Guardian)

Whilst a POA deals with financial matters, a medical POA deals with medical and health issues. If the principal can no longer make medical decisions for him or herself, then their enduring guardian can. The principal can state the type of medical treatment that they would agree to such as whether they want life support maintained or withdrawn at the end of their life. An enduring guardian cannot make financial decisions.

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