We are sadly all too aware that financial abuse can and does take place in our communities against elderly and vulnerable people whom we should be protecting. A recent WA case highlighted this where an elderly woman with dementia, who did not have any Powers of Attorney in place, was taken advantage of by her sons. They did a number of things including selling her farm and transferring the family home into their names. Their mother’s substantial estate diminished to a fraction of its size and, because she was not entitled to a Centrelink pension, she was left with limited means with which to pay for her ongoing medical needs.
The elderly woman’s granddaughter initiated an application in the WA State Administrative Tribunal to have the Public Trustee of WA appointed as her grandmother’s financial manager. The Tribunal made a finding that the sons “clearly exploited their mother whom they accepted lacked legal capacity”. This troubling finding occurs unfortunately all too often.
The case illustrates the importance of making appropriate Powers of Attorney in the event that mental capacity is lost, or impaired for a period of time, and financial or legal affairs need to be managed.
It is further vital to review existing Powers of Attorney on a regular basis. It you have reason to suspect that someone you have appointed may not act in your best interests or is no longer the most appropriate person, the appointment should be revoked and a replacement attorney appointed.
In the event of an attorney breaching their fiduciary duty but a principal no longer having capacity to revoke the appointment, any interested person can make an application to the Administrative Tribunal in their state for orders that the attorney be removed and replaced. This option is also available for people who have not made Powers of Attorney, like the elderly woman in the WA case. Those doing wrong can also be subject to criminal or civil penalties.
Our experienced Wills and Estates team is able to assist with any advice you might need, now or in the future.
Senior Lawyer