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Power of Attorney and Guardianship Disputes

An attorney is someone appointed to make decisions on behalf of another person (known as the ‘principal’) under a written ‘Power of Attorney’ document. There are generally two types of attorney: a ‘general attorney’ and an ‘enduring attorney’. A general attorney has power to make financial decisions on behalf of someone (for example, while they are on holiday). An enduring attorney has power to make financial and /or personal and health decisions on behalf of someone even if the person becomes incapable of handling their own affairs (for example, if they lack capacity, suffer from severe dementia or 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) have 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 Trustee or 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 they might mismanage the person's 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. Compensation may also be sought in certain circumstances when an attorney has, for instance, breached their powers by misappropriating funds. 

We are pleased to be able to offer a range of fee options for clients (depending on their circumstances) as we appreciate different arrangements suit different people. These options include "deferred" payment of fees and speculative (no win no fee) arrangements.

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.