Attorney Abuse: What Can You Do in Victoria?

What Is Attorney Abuse?

A power of attorney is a legal document that allows one person (the principal) to appoint another person (the attorney) to make certain decisions and sign documents on their behalf. In Victoria, the most common form is an enduring powers of attorney made under the Powers of Attorney Act 2014 (Vic), which continues to operate even if the principal later loses decision-making capacity.

An attorney's role is, at its core, a position of trust. The attorney must put the principal's interests ahead of their own, act within the scope of the appointment, and keep their personal affairs separate from the principal's. The Powers of Attorney Act imposes specific obligations, and the general law adds strict fiduciary duties on top.

"Attorney abuse" is a broad term used to describe conduct that breaches those obligations — whether by taking advantage of the principal financially, exceeding the powers granted, failing to keep proper records, or simply ignoring the principal's wishes where they can still be ascertained. It can range from careless conduct through to deliberate financial elder abuse.

Common Examples of Attorney Misconduct

Concerns about attorney conduct usually fall into a handful of recurring categories. None of these are confined to one type of family or one level of wealth — they arise across very ordinary Victorian estates as often as they arise in larger ones.

• Misuse of money — using the principal's funds to pay the attorney's own bills, transferring money into the attorney's personal account, withdrawing cash without a clear purpose, or charging informal "fees" without authority.
• Unauthorised gifts — making gifts to the attorney, the attorney's family or friends beyond the limited circumstances permitted by the Powers of Attorney Act and the terms of the appointment.
• Conflicts of interest — entering into transactions in which the attorney has a personal interest (for example, buying the principal's property, renting from the principal at a discount, or directing estate funds into the attorney's own business) without proper authority or disclosure.
• Failure to keep records — operating the principal's affairs without maintaining clear accounts, mixing the principal's money with the attorney's own funds, or being unable to explain where significant sums have gone.
• Acting outside authority — taking decisions that are not within the scope of the appointment (for example, dealing with personal matters under a financial-only power, or making decisions after the appointment has ceased to operate).
• Ignoring the principal's wishes — where the principal still has capacity, or where their previously expressed wishes are clear, an attorney who proceeds in a contrary direction may be acting improperly.

Not every error is "abuse". Many attorneys are family members doing their best in difficult circumstances, and mistakes are common. Balanced commentary is important: the question is usually whether the conduct, taken as a whole, reflects a breach of duty — not whether every individual decision was perfect.

Warning Signs Families Should Watch For

Families are often the first to notice that something has changed in the principal's financial or personal affairs. Common warning signs include:

• Sudden or unexplained changes in the principal's bank balances, regular payments or investment arrangements;
• New accounts or credit facilitiesopened in the principal's name, or existing accounts consolidated without a clear reason;
• Transfers of property — particularly the principal's home — into joint names with the attorney, or into entities associated with the attorney;
• Restricted access to the principal, their mail, their email or their financial information, especially when other family members raise questions;
• Changes to the principal's Will or estate-planning documents that align with the attorney's interests and were made when capacity was in doubt;
• Reluctance to provide accounts or a defensive response when reasonable questions are asked about how the principal's money is being used; and
• Standard of living mismatch — the principal appearing to go without necessities even though their finances should comfortably support them.

None of these signs is conclusive on its own. They are simply prompts to ask sensible questions and, where answers are not forthcoming, to obtain advice.

What Duties Does an Attorney Owe?

An attorney appointed under the Powers of Attorney Act 2014 (Vic) owes a series of clear obligations. The most important are:

• Act honestly, diligently and in good faith — the attorney must act with the same care and skill that a reasonable person in the same circumstances would show, and never with the intention of benefiting themselves at the principal's expense.
• Act in the principal's best interests — decisions must put the principal first, take account of the principal's known wishes, and (where the principal still has capacity) be made in consultation with them wherever possible.
• Avoid conflicts of interest — an attorney must not enter into a transaction in which their personal interest conflicts with the principal's interest, unless the appointment expressly authorises it or proper consent has been obtained.
• Keep accurate records — the attorney must keep and preserve accurate records of dealings and transactions made under the appointment, and keep the principal's property and money separate from their own.
• Act within authority — the attorney must only do what the appointment, and the Act, permit. An attorney who acts beyond their authority is personally liable.

These duties continue for as long as the appointment is in force. They are not optional, and they cannot be "contracted out of" by family agreement.

Can an Attorney Be Removed?

Yes. The Victorian Civil and Administrative Tribunal (VCAT) has wide jurisdiction under the Powers of Attorney Act 2014 (Vic) to make orders in relation to an enduring power of attorney. On an application by the principal, a person with a special interest in the principal's affairs, or other prescribed persons, VCAT can:

• order that the attorney provide accounts and other information about the exercise of the appointment;
• suspend the attorney's authority while a matter is being investigated;
• revoke the appointment, or part of it, and (in appropriate cases) appoint an administrator under the Guardianship and Administration Act 2019 (Vic); and
• order the attorney to compensate the principal or the estate for loss caused by a breach of duty.

The Supreme Court of Victoria has a parallel supervisory jurisdiction and is generally the appropriate forum where significant loss has occurred, where complex transactions need to be unwound, or where related estate-administration issues arise.

Can an Enduring Power of Attorney Be Revoked?

A principal who still has decision-making capacity can revoke an enduring power of attorney at any time. The revocation should be in writing, signed and witnessed in accordance with the Powers of Attorney Act, and the attorney must be notified. Copies of the revocation should also be provided to banks, share registries, accountants and any other institution holding the existing document. Our guide on revoking an enduring power of attorney sets out the process in more detail.

Where the principal has lost capacity, the principal cannot validly revoke the document themselves. In that situation concerned family members will usually need to apply to VCAT, which has the power to suspend or revoke the appointment, or to make alternative orders for the management of the principal's affairs.

It is also worth remembering that an enduring power of attorney automatically ceases to have effect on the death of the principal. From that point, authority over the deceased's affairs passes to the executor named in the Will and the rules of estate administration apply.

What If Financial Loss Has Occurred?

Where the principal has suffered financial loss because of attorney misconduct, the law provides a number of avenues for recovery. In general terms, an attorney who breaches their duties can be required to:

• account for transactions made under the appointment;
• repay money taken in breach of duty, together with interest;
• transfer back property dealt with improperly, or compensate the principal or the estate for the loss; and
• in serious cases, face referral to police where the conduct may amount to a criminal offence.

Recovery is usually most effective where action is taken promptly. Records become harder to obtain over time, money may be dissipated, and the principal's own recollection may become less reliable. Where significant sums are involved, early legal advice is critical.

Practical Steps When Concerns Arise

If you are concerned about the way an attorney is exercising their powers in Victoria, a practical starting checklist looks like this:

1. Gather the documents — locate a copy of the enduring power of attorney, the principal's Will, recent bank and superannuation statements and any correspondence with the attorney.
2. Preserve records — keep, do not alter, original documents and electronic records. Make dated notes of conversations and observations.
3. Speak with the principal where it is safe and appropriate to do so, and seek to understand their wishes and their current capacity.
4. Raise concerns with the attorney in writing, where possible, asking specific questions about transactions and decisions you do not understand.
5. Obtain independent legal advice from a Victorian lawyer experienced in powers of attorney and elder financial abuse before taking formal steps.
6. Engage relevant institutions — banks, share registries and aged-care providers can often freeze or restrict transactions where genuine concerns are raised through the correct channels.
7. Consider VCAT or Court action if the concerns are serious, the attorney refuses to engage, or losses are continuing.
8. Involve the police where you suspect theft, fraud or other criminal conduct.

Conclusion

An enduring power of attorney is a powerful and generally beneficial document, but the very breadth of authority it confers means that misuse can have serious consequences. Attorneys in Victoria are bound by clear statutory and fiduciary duties, and the law provides real remedies — through VCAT and the Supreme Court of Victoria — where those duties are breached.

Families who are concerned about an attorney's conduct should not assume that nothing can be done. Early advice, careful preservation of records and timely engagement with the right tribunals or institutions often make the difference between recovery and loss. Whether the answer is a difficult conversation, a formal revocation, an application to VCAT or full estate administration after the principal's death, Victorian law provides a structured path through what is usually a very distressing situation.

Frequently Asked Questions