Procedural fairness called into question at power of attorney hearing
Published 12 May 2015
Appointing a power of attorney is something that everyone should consider. It ensures there is somebody who can take over your financial affairs and other important decisions should you suddenly lack the mental capacity to do so.
A power of attorney is appointed in a legal document and they can take up the position either on a limited basis, or for an indefinite period. The allocated person may also be referred to as the principal, and their duties will come to an end in the event of your death.
The Civil and Administrative Tribunal of New South Wales recently heard a case where doubts were raised over one woman’s choice of principal.
A grandmother – referred to throughout the case as BTF – appointed her attorneys on May 22 2013. They were her son (BTE) and daughter (BTG). However, her granddaughter (BTD) launched an appeal after concerns were raised that her uncle had been using BTF’s funds for his own gains.
BTD was asked to outline why a review of the enduring power of attorney was necessary. She accused BTE of putting $80,000 from the sale of a property in Estonia into his own accounts, before telling other relatives they were not allowed to spend any money.
She also suggested that BTF had been under duress when some of her earlier financial decisions had been made. BTD put forward that some of the proceeds for the sale of the property in Estonia should have been payable to her.
At first the appeal was rejected. However, BTD argued that procedural fairness had not been in place when she was denied access to the hearing at which BTF gave her evidence. She also indicated that her uncle had tutored her grandmother prior to the hearing so further legal concerns would not be raised.
The tribunal offered BTD the opportunity to apply for a review of the enduring power of attorney on the basis that she was an interested person. This situation usually arises when the existing principal isn’t acting in the best interests of the individual they are representing.
An agreement has now been reached between BTF and BTD on the sale and future of managing funds that may result from the property in Estonia. When BTD travels to the country to sell the property, she will be able to put all proceeds from the sale into her local account, which can then be used to buy more real estate.
Being certain of your wishes is essential when it comes to managing your affairs. For assistance with contesting a will, be sure to get in touch with our team.