Failure Cases and Official Sources
Misuse of a power of attorney and elder financial abuse: warning signs, failure cases and where to report
How enduring powers of attorney are misused in Australia, warning signs of elder financial abuse, illustrative cases, and how tribunals, public advocates and police can respond.
An attorney under an enduring power of attorney must act in the principal's interests, keep the principal's money separate from their own, keep records, and must not use the principal's money for their own benefit unless the document or the law clearly allows it. When attorneys break those duties, the most common pattern is gradual: "loans" to family, paying the attorney's own bills, transferring savings into a joint account, or selling the home and keeping part of the proceeds. In each state the guardianship tribunal (NCAT, VCAT, QCAT or WA's SAT) can review an attorney's conduct, require accounts, revoke the appointment and appoint a financial manager, and courts can order compensation. If you are worried about an older person, the national 1800ELDERHelp line (1800 353 374) connects you to the service in your state; in an emergency call 000.
General information only.
Warning signs
- Unexplained withdrawals, transfers or new credit cards
- The principal's bills going unpaid while the attorney's lifestyle changes
- A new "joint" account with the attorney
- Pressure to change a will, a super nomination or the title to the home
- The principal being isolated from other family or friends
- An attorney refusing to show records to the principal or other family
- Aged care or medical providers being paid late or not at all
- Assets sold without explanation, or below value to the attorney's associates
Attorney duties, in plain terms
| Duty | What it means | Example of breach |
|---|---|---|
| Act in the principal's interests | Decisions benefit the principal, consistent with their wishes where known | Selling the principal's car to fund the attorney's holiday |
| Keep money separate | Principal's money stays in their own accounts | Depositing the principal's pension into the attorney's account |
| Keep records | Receipts and accounts for every transaction | No records of cash withdrawals |
| Avoid conflicts | No transactions that benefit the attorney, unless authorised | Buying the principal's house at a discount |
| Gifts only if allowed | Small customary gifts may be allowed by the Act or the document | Large "gifts" to the attorney's children |
| Act within the document's limits | Respect conditions and limitations | Using a power limited to banking to sell land |
The details differ between states; each state's Powers of Attorney or Guardianship Act sets them out.
Illustrative failure cases
Case 1: the "loan"
Patricia, 84, in Melbourne, appoints her son Rob as attorney. Rob withdraws $90,000 from her savings to pay off his car loan and credit cards, describing it as a loan he will repay "from the inheritance".
- This is a conflict and likely a breach. Patricia did not authorise it while capable.
- Her daughter applies to VCAT, which can review the power, order accounts and appoint an administrator.
- A court claim for compensation may be needed to recover the money. Recovery depends on Rob's means.
Case 2: the home sale
Frank, 79, in Brisbane, moves into aged care. His daughter, as attorney, sells his unit for $520,000 and, after paying the refundable accommodation deposit, transfers $150,000 to herself, saying her father had promised her "a share".
- Promises are not authority. Unless the EPA expressly permits gifts to her, the transfer is a breach.
- QCAT can make orders, and the Public Trustee may be appointed as administrator. The Public Advocate can investigate in some cases.
Case 3: mixing accounts
Helen's son pays her bills from his own account and reimburses himself from hers, with no records. He is honest, but when siblings question the accounts after Helen's death, he cannot prove what was spent on her.
- Even honest attorneys face disputes without records. The executor may demand an account.
- Prevention: separate accounts, receipts and a simple spreadsheet.
Where to report or get help
| Concern | Who to contact |
|---|---|
| Immediate danger | Police on 000 |
| Concern about an older person (any state) | 1800ELDERHelp (1800 353 374) |
| Review an attorney or appoint a financial manager | NSW: NCAT Guardianship Division; Vic: VCAT; Qld: QCAT; WA: State Administrative Tribunal |
| Investigation of abuse of an adult with impaired capacity | Office of the Public Advocate (Vic, Qld, WA); NSW Ageing and Disability Commission |
| Legal advice | Legal Aid, community legal centres, seniors' legal services |
| Theft or fraud | Police; banks' financial abuse teams |
Banks have specialist teams and can freeze or flag accounts where abuse is suspected. Tell them early.
Protecting yourself when appointing an attorney
- Choose carefully. Trustworthiness matters more than closeness.
- Consider joint attorneys for important decisions, or require the attorney to provide accounts to another person.
- Write limits and conditions into the document, such as no gifts or no sale of the home without consultation.
- Choose when it starts: on loss of capacity rather than immediately, if your state allows.
- Tell family who the attorney is and where the document is.
- Review the appointment if relationships change.
See enduring powers of attorney by state for forms and witnessing.
If you are an attorney
- Open or keep a separate account in the principal's name.
- Record every transaction with receipts.
- Ask before acting outside routine bills, and get advice on big decisions.
- Never pay yourself unless the document or the law clearly allows it.
- Remember the power ends at death: the executor then takes over.
FAQ
Can family members demand to see the attorney's records?
In most states the tribunal or court can order an attorney to produce accounts, and the principal (if capable) can ask at any time. Some state Acts give specific people a right to apply.
Is elder financial abuse a crime?
Theft, fraud and other offences apply. Some states have specific offences relating to abuse of vulnerable people. Police decide whether to charge.
Can the attorney change the principal's will?
No. Only the principal (while capable) or the Supreme Court (through a statutory will) can.
Sources
- NCAT, VCAT, QCAT — guardianship and administration
- Office of the Public Advocate (Victoria) — attorney duties and investigations
- Compass (elder abuse information) — national elder abuse information and the 1800ELDERHelp line
- NSW Legislation — Powers of Attorney Act 2003
- Related: mistakes overview, free legal help, official sources
