A Power of Attorney (POA) is a very important legal document that appoints a person or trustee organisation of your choice, to manage your financial and legal affairs while you are alive, often when you do not have the capacity to look after your affairs on your own anymore. Whether or not you decide to make a General POA or an Enduring POA, it is a big decision as it gives somebody else a great deal of power over your financial well-being. Your attorney will be able to access bank accounts, sell property, buy and sell shares, amongst other things and it is important that you are able to trust them to put your interests first and to not abuse that power.
Unfortunately though, sometimes the people we put our trust in do not do the right thing. This can occur when the attorney you have appointed uses money or assets in their control inappropriately without meeting their obligations towards the person they agreed to assist. Whilst there are serious consequences for a person if they abuse their powers under a POA, it is important to know what action you can take should this situation occur.
Revocation of your Power of Attorney
To revoke a POA you must still have the capacity to do so. In this context, capacity refers to your ability to make decisions for yourself. That is, you must understand the nature and consequences of your decisions. Whilst there is no set form to revoke a POA, it must meet the following criteria:
It must be in writing to your attorney;
It must have your name (as the principal) in the document;
Have the date the POA was put in place;
If applicable, the registered number of the POA (if the POA is registered the revocation will also have to be registered);
The date of the revocation;
Words which indicate that you are revoking the POA such as “I hereby revoke..”; and
Once you have revoked the POA, it is a good idea to destroy the POA and any copies that you have. You should also notify organisations such as banks that your attorney was dealing with on your behalf so that they are aware the POA has ended.
Lack of Capacity
A General POA will cease to be operative should you lack capacity. If you have an Enduring POA it will continue to operate and you will not be able to revoke it. However, if family members or close friends are concerned about what is happening with your finances because they suspect the POA is being abused, they can make an application to the NSW Civil and Administrative Tribunal (NCAT). Once an application has been lodged with NCAT, the Tribunal will be able to investigate further.
Through its investigation, NCAT can require documents and records to be produced by an attorney to demonstrate that they are doing the right thing. They have the power to revoke, suspend, confirm or vary a POA and will do any of these things, provided it is in the best interests of the person who made the POA in the first place. Going to NCAT is a much less formal experience than going to court and can be significantly more cost effective. However, you may also be able to make an application to the Supreme Court of NSW should this be a more suitable option. It is important to speak to a lawyer to discuss these options further.
How can I avoid this happening to me?
One of the reasons it is so important to speak to a lawyer to discuss what your options are in regards to making a POA. Whilst it is impossible to know exactly how someone you nominate will act under a POA, things to consider before making an appointment should include:
Acknowledging the person you nominate may have complete control over all of your assets and finances. Consider what their financial situation is.
You can decide when the POA begins to operate. For example, you can make the POA operate only if a doctor says you need assistance.
You can limit what your attorney can do (This is not always recommended depending on your situation. It is important to speak to a lawyer if you have concerns).
Potentially appointing two people to be your attorneys to act together.
If you need further information or assistance please contact:
02 4036 3307
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.