Power of Attorney and Guardianship Disputes

An attorney is someone appointed to make decisions on behalf of another person (known as the ‘principal’) in a ‘Power of Attorney’ document. There are generally two types of attorney: a ‘general attorney’ and an ‘enduring attorney’. A general attorney acts on behalf of someone who has capacity (for example, while they are on holiday) and an enduring attorney acts on behalf of someone who does not have capacity to act for themselves (for example, if they are in a coma).

Attorneys take on very serious responsibilities and have many obligations and duties that they must carry out. Above all, an attorney must act honestly and in the best interests of the principal at all times.

If someone with impaired capacity has not appointed an attorney, the Queensland Civil and Administrative Tribunal (QCAT) has the power to appoint a guardian and/or administrator to manage their personal and financial affairs for them. This person is usually a family member or friend who has an interest in the person’s welfare.

In some cases, there may be a dispute between family members or friends as to who is the most appropriate person to appoint. If there is a serious dispute or there is no suitable family member or friend to appoint, QCAT may instead appoint the Public Guardian to manage a person’s affairs.

Unfortunately, some attorneys and guardians breach their obligations and duties after they have been appointed by not acting in a person’s best interests. For example, they might not obtain proper medical treatment for the person or mismanage their finances. When this occurs, the Supreme Court (and in some cases, QCAT) has the power to change the powers granted to an attorney or guardian and even replace them altogether.

If you have concerns about the care of a loved-one or would like advice in relation to Powers of Attorney or guardianship and administration matters, contact our team on +61 7 3001 2999 for your free 45 minute no obligation appraisal.