CLAIMS AGAINST A POWER OF ATTORNEY in queensland

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POWER OF ATTORNEY COMPENSATION CLAIMS UNDER THE POWERS OF ATTORNEY ACT (QLD)

If someone has been appointed as the Power of Attorney for a person pursuant to a Queensland document and they have not strictly complied with their legal obligations in accordance with the Queensland Powers of Attorney Act, they can be held personally liable for their actions.

They could be required to repay money to the estate or to you directly, with interest.

At The Estate Lawyers, our experience is that often Attorneys are in breach of their obligations because they do not adequately understand the requirements of the role imposed upon them by Queensland legislation. Unfortunately for some Attorneys, ignorance of the law will not save them from a claim being made against them personally or against the Deceased’s estate because of the actions or inactions of the Attorney, whilst exercising their powers.

The Queensland Government introduced new Power of Attorney documents which must be used for any Powers of Attorney signed in Queensland from 30 November 2020 onwards. Contact us to ensure that the correct form has been signed.

If an Attorney has breached their legal obligations, whether they intended to or not, they can be held to account. We act provide advice to Attorneys to assist them in their role to ensure they meet the requirements outlined in the Powers of Attorney Act (Qld).

Do you still have questions? Contact us and we will be happy to help!

Some of the most common questions asked about the role of an Enduring Power of Attorney and what claims might arise against the Attorney or against a Deceased estate are below.

FREQUENTLY ASKED QUESTIONS ABOUT POWER OF ATTORNEY LITIGATION  

+ WHAT IF THE ATTORNEY HAS NOT KEPT RECORDS?

If an Enduring Power of Attorney has not kept written records of their actions as an Attorney, they can be held to account for any money which they cannot prove was used for the Deceased person’s interests. If there are no receipts and / or tax invoices for the expenditure, then it may be inferred that some money spent was reasonable but it will be for the Attorney to prove. If they cannot prove that, they must repay the money to the estate, with interest.

+ DOES THE EXECUTOR INVESTIGATE THE RECORDS OF THE ATTORNEY?

It is the role of the Executor to ask for the accounting from the Attorney. If however the Executor was the Attorney, the beneficiaries of the estate should require the Executor to provide the accounting to them for their review.

+ WHAT IF THE ATTORNEY SOLD A GIFT LEFT IN THE WILL TO ME?

If an Attorney has sold an asset, usually a house to pay for a nursing home bond, and that house or asset was left to you personally, if it does not exist at the time of death the gift to you has failed. There is however provision in the Queensland Powers of Attorney Act for you as a disappointed beneficiary to file an Application with the Court to seek compensation for your loss due to the Attorney’s actions. The Court proceedings must be filed within six months from the Deceased’s death so you should not delay.

+ WHAT IS THE PRESUMPTION OF UNDUE INFLUENCE AND HOW DOES IT WORK?

If someone is appointed as the Power of Attorney of the Deceased person and their power for financial matters has commenced, then any gifts made to the Attorney are presumed to be made by undue influence and therefore liable to be set aside.

This arises in practice when elderly people might transfer their home or other assets to their children.

If the child is the Power of Attorney and someone who has a reduced inheritance objects, it is possible to set aside that transfer and force the return of the asset to the estate.

+ WHAT IS A CONFLICT TRANSACTION AND HOW CAN THIS LEAD TO AN ESTATE DISPUTE?

A conflict transaction is when the Attorney completes an act for the Deceased which also involves the interests of the Attorney.

It could be for example selling a jointly owned asset.

Many Enduring Power of Attorney documents will permit this to happen but the Attorney must justify how the transaction was in the best interests of the Deceased.

If they cannot do that, they are liable to pay the estate compensation.

GOT QUESTIONS? GET ANSWERS FROM THE ESTATE LAWYERS. YOUR INITIAL CALL OR EMAIL IS FREE

We always want to speak with any potential new client.  It does not cost you anything to get in touch with one of our specialist estate lawyers.  We will provide you with some initial guidance free of charge and we can discuss with you our fee proposal for any work you might require and the time frame for the completion of your work.  

Call us during business hours or contact us at The Estate Lawyers for email and other contact information.