Concerns about the Actions of an Attorney

An attorney is in an important position of trust.  Attorneys are not supervised and do not have to report to any external agency.  An attorney should:

• always act only in the best interests of best interests of the person
• avoid doing anything as an attorney which would mean that their interests conflict with the interests of the person
• obey the person’s instructions while you are mentally capable and any directions you make in the Enduring Power of Attorney
• act according to any limits or conditions placed on their authority
• not give gifts or give themselves or others a benefit using your finances unless the person specifically authorise this
• keep their finances and money separate from the person
• keep accurate and proper records of their dealings with the person’s finances or property

If the principal has capacity, they retain the right to make decisions about their Power of Attorney.  However many older people are vulnerable and open to manipulation or undue influence.    If a principal has lost capacity and you have concerns about the actions of their attorney, you can apply to the Supreme Court or the NSW Guardianship Tribunal for a review of the Enduring Power of Attorney. 

Any person with a genuine interest can make an application to the Guardianship Tribunal for a review of the appointment, and if necessary the Tribunal can make a Financial Management Order appointing another person or NSW Trustee and Guardian to manage the person’s financial affairs. The Supreme Court can also appoint a person or NSW Trustee and Guardian as financial manager. Application to the Supreme Court for a management order is made by a summons, supported by an affidavit of the applicant and two medical affidavits. For more information about the NSW Supreme Court visit their website.

Sometimes attorneys do not act in the best interests of the person because:

• The attorney doesn’t understand their role and responsibilities, although they genuinely believe that their decisions will benefit the person
• The attorney deliberately uses their powers to benefit themselves or a third party
• The attorney uses their position to abuse, exploit or neglect the principal
• The principal was manipulated to give the Power of Attorney under undue influence or when they did not have capacity

If you have concerns about possible abuse or exploitation of the person, you can refer to the NSW interagency protocol for responding to the abuse of older people (under review).  This protocol has been developed in consultation with key agencies within NSW and provides assistance and guidance for anyone who has concerns about an older person who may be at risk of abuse. For a copy of the protocols go to: http://www.adhc.nsw.gov.au/sp/report_abuse/responding_to_abuse_of_older_people

Sometimes, the attorney may also have lost capacity.  This can occur particularly in situations where a person gives his or her spouse a Power of Attorney and both parties are now of an advanced age.  In this case, an application can be made to the Supreme Court or the Guardianship Tribunal for a review of the Power of Attorney.