Can you challenge an Enduring Power of Attorney?
The short answer is yes.
There are a number of grounds on which you can challenge an Enduring Power of Attorney including:
- If you think the person who made it did not understand what they were doing when they made it
- If you think the document has not been correctly completed
- If you think the Enduring Attorney is not acting appropriately or in the interests of the person for whom they are the Enduring Attorney.
Any of these factors could justify you seeking to have the document declared invalid or have the Enduring Attorney sacked as the Enduring Attorney.
Any such action by you would have to be brought by an application to the Queensland Civil & Administrative Tribunal (QCAT). The website of QCAT contains decisions of the Tribunal where they have terminated an Enduring Attorney’s appointment. The reasons can include such things as failing to comply with the General Principles, engaging in conflict transactions in which the Enduring Attorney lines their own pocket at the expense of the other person or where they simply fail to do the things they should have such as properly managing the person’s finances.
However, if an application involves, as it often does, disputes between members of the same family, it might be best to consider whether you should initially refer your concerns to the Office of the Public Guardian (formerly the Adult Guardian) for them to investigate the matter.
One of the disadvantages of trying to pursue your concerns directly with QCAT is that it can be very difficult to obtain relevant information from people to substantiate your concerns and which is what QCAT would want to see.
If they decide to investigate your concerns, the Public Guardian has the right to obtain information from anyone, including the Enduring Attorney, and then will produce a report on their investigation. If it shows that your concerns were justified, then that report can be powerful evidence for QCAT to make the appropriate orders such as sacking an Enduring Attorney.
Best advice is if you have genuine concerns about what an Enduring Attorney is doing (or not doing) contact us and we will give you detailed advice about your concerns and what to do about them. As always however, the sooner you act the better.