Information Centre · Powers of Attorney & Elder Law
Attorney Abuse: What Can You Do in Victoria?
Suspected misuse of an enduring power of attorney is distressing and legally complex. This article sets out the statutory framework in the Powers of Attorney Act 2014 (Vic), what typically constitutes misuse, and the remedies available at VCAT and the Supreme Court. General information only — not legal advice.
Key points
- An enduring power of attorney for financial or personal matters, a general non-enduring power, a supportive attorney appointment and a medical treatment decision-maker are separate roles under Victorian law with different scopes and remedies — not every mistake or family disagreement is 'abuse'.
- Attorneys owe the statutory duties in the Powers of Attorney Act 2014 (Vic), including acting honestly, with reasonable diligence and skill, not using the position for profit unless authorised, avoiding unauthorised conflict transactions, keeping the principal's property separate and keeping accurate records and accounts.
- Gifts, maintenance of dependants and conflict transactions are only authorised to the extent the instrument and the Act allow — whether a particular transaction was authorised is a fact-specific question.
- A principal with decision-making capacity for the matter may revoke an enduring power in the statutory form; the attorney, banks, land titles, companies and other third parties should be given notice, and third parties can rely on the power until they have notice of revocation.
- VCAT may consider validity, operation, suspension, revocation and variation of an enduring power, order accounts, examine transactions, and order compensation where the Act permits — standing and remedies are governed by the Act and are not automatic.
- Compensation, equitable tracing, criminal reports, protective orders and family provision or estate claims after death are distinct pathways with their own conditions, limitation periods and forum considerations.
The term "attorney abuse" is used broadly. In Victoria it usually refers to conduct by an attorney under an enduring power that is inconsistent with the statutory duties in the Powers of Attorney Act 2014 (Vic). That includes dishonesty, unauthorised gifts and conflict transactions, comingling of funds, failing to keep records, and exercising the power outside the scope of the appointment.
Different appointments have different scopes and remedies. This article focuses on enduring powers for financial and personal matters; it briefly notes supportive attorney appointments and medical treatment decision-makers where relevant.
The instruments — knowing which one applies
An enduring power of attorney under Part 3 of the Act may be made for personal matters, financial matters, or both. The instrument can be made to commence immediately, on a stated date or event, or on the principal losing decision-making capacity for the matter.
A general non-enduring power ends if the principal loses decision-making capacity. It is often used for a specific transaction or a defined period.
A supportive attorney appointment under Part 7 authorises the supportive attorney to assist the principal to make and give effect to their own decisions. The supportive attorney does not make decisions for the principal.
A medical treatment decision-maker appointed under the Medical Treatment Planning and Decisions Act 2016 (Vic) makes medical treatment decisions if the principal does not have capacity to do so.
The attorney's statutory duties
The Act imposes duties on attorneys, including:
- acting honestly and with reasonable diligence and skill;
- acting in accordance with the Act and the instrument;
- not using the position to profit, directly or indirectly, unless authorised;
- avoiding conflict transactions unless authorised by the instrument, the principal (with capacity) or VCAT;
- keeping the principal's property separate from the attorney's own property;
- keeping accurate records and accounts of dealings and transactions made under the power; and
- maintaining the confidentiality of information gained as attorney.
The Act also sets out the decision-making principles that apply when the attorney is making decisions for a principal without capacity for the matter, including giving effect to the principal's wishes so far as reasonably practicable. Those statutory principles replace any generic common-law "best interests" slogan.
Gifts, conflict transactions and benefits
Section 67 of the Act sets out the conditions on which an attorney may make a gift of the principal's property — broadly, gifts of a seasonal nature or on a special occasion of a value that is reasonable having regard to the principal's circumstances. Larger or unusual gifts, or gifts to the attorney or a related party, require express authority in the instrument or authorisation.
Section 64 governs conflict transactions where the attorney or a related party stands to benefit — these require express authority. Whether a particular transaction is a gift, a conflict transaction, or otherwise authorised is a fact-specific question that turns on the terms of the instrument and the surrounding facts.
Revocation
A principal with decision-making capacity for the matter may revoke an enduring power using the statutory form. To be effective in practice, notice of the revocation should be given to the attorney, and certified copies should be provided to institutions that may have relied on the power — banks, superannuation trustees, aged-care providers, Land Use Victoria and, where the attorney has been acting for a company, ASIC and company officers. Third parties can rely on the power until they have notice of revocation.
Applying to VCAT
VCAT has a broad supervisory jurisdiction over enduring powers. Standing to apply is set out in the Act and includes the principal, the attorney and a person with a special interest in the principal's welfare or property. VCAT may:
- determine the validity of an enduring power;
- make orders about the operation of the power;
- suspend, revoke or vary an appointment;
- order the production of accounts;
- examine transactions and their validity; and
- order compensation for loss caused by a contravention of the Act to the extent the Act allows.
VCAT is not always the proper forum. Complex tracing claims, disputed title and larger monetary claims may be better suited to the Supreme Court's equitable jurisdiction.
Compensation and recovery
Where money has been misapplied, remedies can include compensation under the Act, equitable compensation, an account of profits, restitution and tracing. Practical recovery depends on the attorney's assets, the evidence, limitation periods and the availability of insurance. Criminal complaint to Victoria Police is a separate pathway with its own thresholds and does not automatically produce a civil recovery.
Death of the principal
The attorney's authority ends when the principal dies. Prior transactions and claims survive. The executor or administrator of the estate may pursue an account of transactions and recovery of misapplied assets through the estate. Family provision or other estate claims are separate and have their own conditions.
Protecting yourself as an attorney
Attorneys who act honestly and keep proper records rarely face difficulty. Practical protective steps include keeping the principal's money separate, retaining receipts and bank statements, taking legal or accounting advice on unusual transactions, obtaining express authority for conflict transactions and gifts, and preparing periodic summaries. Reasonable good-faith conduct in accordance with the Act is protected.
Getting help
Our powers of attorney and elder-law team advises principals, attorneys and family members on enduring power disputes in Victoria, including VCAT applications, Supreme Court proceedings and estate-based claims where the principal has since died.
Frequently Asked Questions
What is an 'enduring' power of attorney?
An enduring power of attorney appointed under the Powers of Attorney Act 2014 (Vic) authorises the attorney to make personal matters, financial matters, or both, decisions for the principal, and continues to operate if the principal loses decision-making capacity for the matter. A general non-enduring power ends if the principal loses capacity.
What duties does an attorney owe?
The Act imposes statutory duties including acting honestly, with reasonable diligence and skill, in accordance with the Act, not using the position for profit unless authorised, avoiding conflict transactions unless authorised, maintaining the confidentiality of information gained as attorney, keeping the principal's property separate from the attorney's own, and keeping accurate records and accounts.
Is every mistake or family disagreement 'abuse'?
No. Attorneys can make errors of judgment, act too slowly or make choices other family members disagree with without breaching the Act. Misuse of an enduring power typically involves dishonesty, unauthorised gifts or conflict transactions, comingling of funds, failing to keep records or acting outside the scope of the appointment.
Can an attorney make gifts or benefit family members?
Only to the extent the instrument and the Act permit. Section 67 of the Act sets out the conditions under which an attorney may make a gift of the principal's property; section 64 governs conflict transactions where the attorney or a related party stands to benefit. Whether a particular transaction was authorised is a fact-specific question.
How does a principal revoke an enduring power?
A principal with decision-making capacity for the matter may revoke an enduring power using the statutory form. Notice should be given to the attorney and to third parties who may have relied on the power — banks, land titles, aged-care providers and others. Third parties can rely on the power until they have notice of revocation.
Who can apply to VCAT?
The Powers of Attorney Act sets out standing to apply to VCAT — the principal, the attorney, a person with a special interest in the principal's welfare or property, and other persons the Tribunal allows. VCAT is not always the proper forum; some matters are more appropriately dealt with by the Supreme Court.
What can VCAT actually order?
VCAT may consider the validity, operation, suspension, revocation and variation of an enduring power, order the production of accounts, examine transactions, and order compensation where the Act permits. The remedies available are governed by the Act and are not automatic; the applicant carries the ordinary burden of proof.
Can we recover money the attorney took?
Compensation, equitable tracing, restitution and account are possible remedies where the elements are established. Limitation periods, evidence, the attorney's assets and the availability of insurance all affect recovery. Criminal reports to Victoria Police are a separate pathway with its own thresholds.
What happens when the principal dies?
The attorney's authority ends on the principal's death, but prior transactions and claims survive. Executors or administrators of the estate step into the principal's shoes and may pursue accounting and recovery through the estate. Family provision or other estate claims are separate.
What should I do first if I am worried?
Gather bank statements, land titles, superannuation records, transaction records and any correspondence. Take legal advice before making accusations, notifying banks or applying to VCAT. Where there is an immediate risk of asset dissipation or personal harm, urgent injunctive relief or protective orders may be appropriate.
Powers of Attorney & Elder Law
Advice on suspected attorney abuse.
Parke Lawyers advises principals, attorneys and concerned family members on enduring power of attorney disputes in Victoria — including VCAT applications and Supreme Court proceedings.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.