Harmans Lawyers
27 November 2023

Addressing Improper Use of Enduring Power of Attorney

All Articles & News, Litigation and Dispute Resolution, Seniors Law

An enduring power of attorney (EPA) allows an individual, referred to as the donor, to appoint someone to make decisions on their behalf in the event they become unable to do so themselves. An attorney has an obligation to act in the best interests of the donor. However, there may be times where concerns arise regarding the way the EPA is used. Under the Protection of Personal and Property Rights Act 1988 (PPPRA), it is possible to address these concerns by making an application to the Family Court. There are two types of application: an application for review of attorney’s decision and an application for exercise of the court’s jurisdiction in respect of an EPA.

An application to review the decisions made by the attorney allows the court to examine the attorney’s actions and decisions to ensure they are acting in the best interests of the donor. An application can be made while the EPA is in force or after it has been revoked or the donor has died.

The PPPRA also allows for applications to be made to the Family Court for other orders. These orders can address specific concerns or issues related to the EPA. For example, if there are concerns about the misuse of funds or assets, or about the attorney’s ability to carry out their duties.

An application can be made by the donor, a relative of the donor, someone with an interest in the donor’s welfare such as a social worker or medical practitioner, and any other person by leave of the court.

The applicant must provide evidence that suggests the attorney may not be acting in the best interests of the donor such as documents, affidavits, or written correspondence such as text messages or emails. The attorney will be provided with a copy of the application and an opportunity to respond. The court will consider the application after hearing from all parties and make a decision based on what it believes is in the best interests of the donor. If the court finds that the attorney has acted improperly, it may revoke or vary the EPA, appoint a property manager or welfare guardian, or make any other necessary orders to protect the person’s interests.

If you are worried about the improper use of an EPA, you have options available to address your concerns. Under the PPPRA, you can make applications to the Family Court to review the attorney’s decisions and seek other orders to protect the interests of the person who granted the EPA. It is important to gather evidence and seek legal advice to ensure the best chance of success in these applications.