A person with a Power of Attorney role can make significant decisions for the subject person who has given them the power, and is therefore in a position of great responsibility.

It is important to know what options are available to you should an attorney not be acting in the best interests of the subject person.

An attorney is required to:

  • Promote and protect the subject person’s welfare and best interests;
  • Consult with the subject person and encourage independence where possible;
  • Consult with other necessary people sometimes, such as doctors, bankers, lawyers and accountants;
  • Give information to others when directed by the subject person; and
  • Keep financial records (limited only to an Attorney for Property).

Attorneys should not make decisions with their own financial position in mind, or that are beneficial to themselves, unless there are circumstances which allows it.

For example, an agreement for an Enduring Power of Attorney (EPOA) may also permit an attorney to benefit financially from some decisions. It is important to check what these legal documents say regarding the role of the attorney and keep this in mind when drafting any future agreements.

There are also some exceptions to this rule, such as an attorney recovering reasonable expenses incurred due to their role as attorney.

However, if an attorney is doing something that they are not allowed to do, such as not acting in the subject person’s best interests, there are some steps that can be taken.

If the EPOA sets out that the attorney must consult with certain people, or provide relevant information to those people, this can be used to find out more about the attorney’s decision.

If the EPOA has no such requirements, a person with an interest in the subject person’s welfare may apply to the Family Court for the review of the attorney’s decision/s. People that can make a request to the Family Court include (but are not limited to) the subject person, a family member, or a doctor.

Once an application to the Family Court is made the Court can make several decisions. For example, the Court can review and monitor the attorney’s decision making. The Court can also modify the EPOA, and direct the attorney to take some action.

The Family Court can also cancel the EPOA. The Court may cancel or revoke the document if they believe the attorney is not acting in the best interests of the subject person, or is otherwise acting outside of the power conferred on them through the EPOA.

It is important to ensure that an attorney is acting in the best interests of a subject person, given the potential consequences of their decisions. If you believe that your attorney, or a family member’s attorney, is acting outside of their role, it will be vital to seek legal advice.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.