Do you think an attorney has been acting inappropriately? Are you aware of the circumstances allowing a challenge to a power of attorney? What can you do?
when can I challenge a power of attorney?
A power of attorney can be challenged on the following grounds:
1. If the document has not been completed properly (i.e. it is invalidly prepared or executed);
2. If the person who made the enduring power of attorney did not have the capacity to understand the nature and terms of the document (i.e. there was some unsoundness of mind or other circumstances affecting their ability to prepare and execute the document)
3. If the person(s) appointed as attorney fails to act in a manner consistent with the best interests of the person that made the document and in accordance with the terms of the document.
what happens next?
Where you think any of the above circumstances apply, you can apply to a Tribunal (QCAT) to have the document reviewed and declared invalid, or to have the attorney(s) removed.
The application process adopted by QCAT however can require relevant information from people to substantiate the concerns raised in an application, which can be difficult to obtain.
As such, Persons wishing to challenge the appointment of a power of attorney should also consider referring their concerns to the Office of the Public Guardian to investigate the matter.
how can the Public Guardian help me?
The Public Guardian is a government body that has broad investigation powers and will produce a report at the conclusion of their investigation. Such a report can be very useful as supporting evidence that can be provided to QCAT.
Ultimately, prevention is always cheaper than the cure. Families can spend large sums of money (and time) where there are issues with powers of attorney. Ensuring your estate planning documents are up to date and appropriate is, therefore, the most effective way of reducing the emotional and financial stress on your family if you are unable to make decisions for yourself.
Consider these before appointing an attorney or if you decide it’s time to go seek help from another one.
If you have genuine concerns about the actions of an attorney or would like to update your attorney appointments, please contact us.
General Advice Disclaimer
Information provided on this website is general in nature and does not constitute financial or legal advice. Every effort has been made to ensure that the information provided is accurate, but information may become outdated as legislation and new government announcements are made. Individuals must not rely on this information to make a financial, investment or legal decision as it does not take into account their personal circumstance. Before making any decision, we recommend you consult a licensed adviser or legal practitioner to take into account your particular objectives, circumstances and individual needs.