Appointing an attorney is an action that should be carefully considered. An appointed attorney owes fiduciary duties to the person who appointed them (the donor).
Fiduciary duties require the attorney to act in the best interests of the donor, to avoid conflicts of interest and to effect the donor’s wishes to the extent possible. However, the power of the attorney to deal with the donor’s finances is open to abuse – particularly where an older person is unable to monitor their own financial position. It can also be a result of the attorney being unaware of their obligations.
Slater and Gordon has acted in abuse of trust cases which have included:
- where an attorney has withdrawn funds from the donor’s bank account for their own personal use or has transferred property from the donor to the attorney (or third persons);
- using the donor’s funds to renovate the attorney’s home; and
- selling down a donor’s share portfolio to pay for the attorney’s living expenses or acting contrary to the donor’s express wishes.
Each of these examples is an actionable breach of trust, and legal proceedings can be brought against the attorney. In our experience, this type of elder financial abuse is often identified when a family member, bank teller, nurse or other carer becomes concerned about an older person’s finances. Sometimes it only comes to light when the older person’s finances have become so dire that they can’t pay nursing home or utility bills.
Older people and their family members should seek advice if they are or become concerned about their financial situation or the actions of an attorney. The following legal issues often arise in these circumstances:
- Actions can be taken under guardianship legislation which exists in various forms in all jurisdictions. Guardianship legislation generally allows applications to be made to the relevant state Tribunal to revoke the appointment of an attorney, or to investigate an attorney and to require them to account for their actions.
- The relevant Tribunal generally does not have the power to order repayment of misappropriated funds. Court proceedings against an attorney may be required to recover funds.
- Where property is transferred, investigations into the status of the title should be made. If a property is held as joint tenants with an older person, it may be appropriate as a first step to sever the joint tenancy. Court proceedings can be brought to overturn the transfer of title in some instances.
- Broader claims of unconscionable conduct or undue influence may exist in circumstances where financial abuse is perpetuated by a person who is not a duly appointed attorney.
If you have any concerns about you or a family member’s financial situation or the actions of an attorney, contact us by completing the enquiry form below to speak to one of our experienced lawyers.