Appointing someone under an Enduring Power of Attorney (Financial) is a major decision. The principal places enormous trust in the attorney to manage their money, property and legal affairs — often after losing the capacity to oversee what is happening.
Unfortunately, not all attorneys follow the law, and some may misuse funds or act carelessly in breach of their duties under the Powers of Attorney Act 2014 (Vic).
What Is a Financial Attorney?
A financial attorney manages the principal’s bank accounts, bills, investments, property transactions and other financial decisions. Their authority continues even if the principal loses capacity.
Legal Duties Under the Powers of Attorney Act 2014 (Vic) include:
- Act in the principal’s best interests
- Avoid conflicts of interest
- Keep detailed financial records
- Act diligently and in good faith
- Consult the principal where possible (s 63(2))
What Families Can Do
- Raise concerns directly with the attorney where appropriate
- Request financial records and explanations
- Seek legal advice to assess possible breaches of obligations
- Apply to VCAT for intervention and various orders.
What if the Principal Has Already Died?
An Enduring Power of Attorney ends automatically when the principal dies.
Families can still investigate suspected misconduct that occurred before death.
VCAT retains jurisdiction to review attorney conduct and order compensation to the estate however families must lodge their application with VCAT within six months of the date of the principal’s death.
What Attorneys Should Be Doing
- Ensure they understand their obligations
- Ensure they understand the scope of power
- Maintain complete and accurate financial records
- Keep finances separate from their own
- Document key decisions and reasons
- Consult the principal where possible
- Act transparently with the family
- Seek legal or financial advice when unsure.
If you, or someone you know, is concerned about whether an attorney is acting appropriately in managing a person’s finances, please contact our team at Hassall’s Litigation Services by telephone on (03) 9555 7233 or by emailing admin@hls.net.au.
