Can I contest a will if someone with power of attorney abuses their responsibilities?
Published 05 May 2020
When it comes time to create a will, many people also appoint a power of attorney (POA). According to NSW Trustee & Guardian, this step is as important for life planning as drafting the will itself as it gives an attorney the legal authority to look after the creator's financial affairs on their behalf.
A POA is legally bound to act in the best interest of the principal who appointed them with this responsibility. Unfortunately, abuse of power of attorney can occur at any moment when the appointee takes advantage of the principal's mental or physical state to benefit themselves and/or no longer acts in accordance with the appointing individual's wishes.
If you suspect power of attorney abuse, here is everything you need to know about moving forward:
Can you contest a power of attorney?
According to the Victorian Civil & Administrative Tribunal (VCAT), there are many grounds for contesting a person with power of attorney and any will created by them for the person who appointed them. This includes if you think the person who made the will and appointed the POA did not understand what they were doing when they made it or were being manipulated, if you think the document was incorrectly completed – and most importantly, if you believe the POA if not acting in the interests of the principal.
Ultimately, you can contest a will or apply to revoke the appointment of a power of attorney if you are able to prove they are not complying with their POA roles as defined by state governments.
Can you sue a power of attorney?
While you may decide to contest a will if someone with power of attorney abuses their responsibilities, there is also the option to sue the appointee. The Legal Services Commission of South Australia explained that if a donor (another term for the person holding POA) acts on an "unreasonable interpretation of the wording of a power of attorney [agreement]," they can be sued for breach of warranty of authority.
Family members or dependents of the deceased who feel like the appointed attorney did not act in the best interest of their loved one, abused their power or created the will in a way they would not see fit have grounds for suing the person with power of attorney.
If you're questioning your eligibility for contesting a will or doubt the wording of a power of attorney, the professionals at Gerard Malouf & Partners can help you understand your rights to filing a claim.