Disputing a Power of Attorney
In some cases it may be that there is a dispute as to whether not an attorney is acting correctly. The New South Wales Civil and Administrative Tribunal ( NCAT) can review an enduring power of attorney and make orders under the Powers of Attorney Act 2003. It can declare that a person who made an enduring power of attorney ('the principal') did not have the mental capacity to do so and that the enduring power of attorney was invalid.
Attorneys are not supervised nor are they required to report to any authority. If you are concerned that the attorney is not acting in the best interests of a person who has lost capacity, you can make an application to NCAT to review the enduring power of attorney.
NCAT can review enduring powers of attorney under the Powers of Attorney Act 2003 if it considers the request for a review is in the best interests of the person who made the enduring power of attorney. It can appoint a substitute attorney and it can declare the principal is not competent to manage their affairs. An application can be made by any interested person.
The definition of an ‘interested person’ is very wide. It is defined as: An attorney appointed under an Enduring Power of Attorney; the person who made the Enduring Power of Attorney (the principal); any person who is the appointed guardian of the principal ; any person who is the enduring guardian of the principal; an attorney whose appointment has purportedly been revoked ;any other person who NCAT considers has a proper interest in the proceedings or a genuine concern for the welfare of the principal.
If it is satisfied of the need to do so, NCAT can vary or revoke the enduring power of attorney. The Tribunal has the power to remove an attorney from office or appoint a substitute attorney. It can reinstate an enduring power of attorney that has lapsed because the attorney is no longer able to act. It can also require an attorney to provide accounts and information.
We can assist with advice in this regard as well as representation if necessary.