Attorneys Behaving Badly: Understanding Misuse of an Enduring Power of Attorney in Queensland

An Enduring Power of Attorney (EPOA) is designed to protect individuals when they are alive but unable to make decisions for themselves. It allows a trusted person, known as an attorney, to step in and manage financial, personal, or health matters on behalf of the principal. 

However, like any position of trust, this role can sometimes be abused. Unfortunately, misuse of an Enduring Power of Attorney is an issue that arises regularly in legal practice, particularly in situations involving vulnerable or elderly individuals. 

Understanding what attorneys are legally allowed to do, and recognising the warning signs of misuse, is essential for protecting both principals and families. 

The Importance of Choosing the Right Attorney 

When appointing an attorney, the most important factor is trust. An attorney may be responsible for making significant decisions about finances, property, healthcare, and day-to-day living arrangements. 

This authority should never be given simply out of obligation or family pressure. If there is any concern that the person may misuse the role, they should not be appointed. 

Attorneys must be individuals who can be relied upon to act honestly, responsibly, and in the best interests of the principal. 

Legal Duties of Attorneys in Queensland 

Attorneys operating under an Enduring Power of Attorney are governed by the Powers of Attorney Act 1998 (Qld). This legislation imposes strict duties on attorneys, including obligations to: 

• Act in the best interests of the principal 

• Avoid conflicts of interest where possible 

• Keep accurate records of financial transactions 

• Manage the principal’s property responsibly 

• Refrain from using the principal’s assets for personal benefit unless legally authorised 

Importantly, the law presumes that attorneys may have the ability to exert undue influence over the principal. Because of this presumption, attorneys must be able to justify any financial transactions they make on behalf of the principal. 

The Most Common Problem: Financial Misuse 

In practice, most complaints about attorneys involve financial matters. While health decisions can occasionally create conflict, financial mismanagement is by far the most common issue. 

One scenario that frequently arises involves attorneys transferring money from the principal’s bank account for their own use. In some cases, these transfers occur without explanation, without documentation, or without any clear benefit to the principal. 

This behaviour is a serious breach of an attorney’s legal duties. 

Attorneys are permitted to manage and use the principal’s funds for the principal’s benefit. For example, they may pay bills, arrange care, or cover living expenses. In some circumstances, they may also be reimbursed for legitimate expenses incurred on behalf of the principal. 

However, transferring money to themselves without justification or proper record-keeping is a clear misuse of the role. 

Conflict Transactions and Reimbursements 

Many Enduring Powers of Attorney include conflict transaction clauses, which allow attorneys to reimburse themselves for reasonable expenses incurred while acting on behalf of the principal. 

For example, if an attorney pays for groceries, medical bills, or household expenses before gaining access to the principal’s bank accounts, reimbursement may be appropriate. 

The key distinction is transparency. Legitimate reimbursements are documented and directly linked to expenses incurred for the principal. Unexplained withdrawals or transfers for personal use are not. 

What Happens if an Attorney Misuses Their Authority? 

If misuse occurs while the principal is still alive, one of the primary options is applying to the Queensland Civil and Administrative Tribunal (QCAT). 

QCAT has the authority to review Enduring Powers of Attorney and, where appropriate, remove an attorney from their position. This process is commonly used when family members believe an attorney is acting improperly. 

However, it is important to understand that tribunal processes can take time. Even urgent applications may take several weeks to be heard. 

If the principal has already passed away, the executor of the estate may still have the ability to investigate the attorney’s actions. Under the Powers of Attorney Act, executors can review financial records and pursue recovery of funds that were improperly taken while the principal was alive. 

This power is particularly important in situations where attorneys have transferred property or large sums of money to themselves. 

Health Decisions and Disputes 

Although financial misuse is the most common issue, disputes can also arise around health decisions. 

In some situations, attorneys may ignore medical advice or attempt to move the principal to different hospitals or care facilities against the recommendation of healthcare professionals. 

When this occurs, medical institutions themselves may intervene or seek directions through QCAT. Family members may also initiate proceedings if they believe the attorney’s decisions are putting the principal at risk. 

The Role of Family Members 

In many cases, concerns about misuse arise within families. A common scenario involves one child being appointed as attorney while other siblings become concerned about how decisions are being made. 

If someone suspects financial abuse or misuse of an Enduring Power of Attorney, taking early action is important. Waiting until after the principal has passed away can make it much harder to recover assets or address wrongdoing. 

Seeking legal advice early can help determine whether intervention is necessary and what steps should be taken. 

Protecting Yourself and Your Loved Ones 

While cases of misuse do occur, it is important to remember that many attorneys carry out their responsibilities diligently and with great care. The role is often undertaken by family members who genuinely want to protect and support their loved ones. 

The best protection against misuse is thoughtful planning from the beginning. This includes: 

• Choosing attorneys carefully 

• Limiting the number of attorneys if appropriate 

• Ensuring attorneys understand their legal obligations 

• Maintaining open communication within families 

A well-structured Enduring Power of Attorney, combined with trusted attorneys, can provide invaluable protection when it is needed most. 

Final Thoughts 

An Enduring Power of Attorney is intended to safeguard individuals when they are most vulnerable. When used correctly, it provides a powerful framework for trusted decision-making. 

However, because it grants significant authority, it must be approached with care. Choosing the right attorney, understanding the legal obligations involved, and remaining alert to potential misuse are all essential parts of protecting yourself and your family.