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Misuse of Enduring Power of Attorney


The 2015 report from the Queensland Government’s statistician’s office found that of all local government areas in the state that Noosa had the highest proportion of seniors (21%) with the Sunshine Coast also high at (18.6%), compared to the Queensland average of 13.6%

The statistics above combined with the increase of the misuse of enduring powers of attorneys for older Queenslanders highlights the importance of education and awareness when it comes to wills, estates and powers of attorney.

 In particular, the role and responsibilities of powers of attorney;

Simply put, a Power of Attorney is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf to handle your affairs. This person is your attorney. The Power of Attorney conveniently allows someone to handle your affairs if you go overseas, take an extended holiday, suffer poor health, or reach an age when you need greater assistance.

 While a will operates on your death, a Power of Attorney operates during your lifetime.

 Under an Enduring Power of Attorney, you may give your attorney the power to deal with all or any part of your financial, personal and health matters.  An Enduring Power of Attorney for financial matters immediately comes into effect once it is signed or at your option on the date or event (for example, incapacity) you elect, and continues to operate when you lose capacity to make decisions. Your attorney can deal with your financial affairs at the same time as you, unless you specify otherwise. For personal and health matters, your Enduring Power of Attorney goes into effect whenever you suffer loss of capacity.

A ‘misuse of enduring power of attorney’ arises where an attorney uses the powers given to them to benefit themselves (or someone close to them) at the expense of the donor.

The misuse of an Enduring Power of Attorney can be a form of financial abuse.

For example;

80 year old widow (Valerie) appoints her nephew (James) as her enduring power of attorney.

James takes the original document to Valerie’s bank. The Bank looks at the document and accepts that James is able to act as Valerie’s attorney for financial matters immediately and notes this in the bank records.

James is having financial troubles. Each week he shops for Valerie buying groceries with James debit card, but he also makes cash withdrawals and rather than give this money to Valerie, he keeps it for herself.

If you suspect that someone is misusing your EPA, you should obtain legal advice immediately.

 


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