On the back of a recent decision from the Victorian Civil & Administrative Tribunal, it seemed an opportune time to write about what options are available to a disappointed beneficiary, where an estate is diminished due to the actions of an attorney acting in breach of their statutory duties, prior to the death of a principal.

The Victorian Decision

In YDM (Guardianship) – [2016] VCAT 758 a dispute between two sisters, who were the nieces of the deceased YDM, made its way before the Tribunal. The Applicant alleged her sister (SYZ) misappropriated the sum of $95,000.00 from the deceased’s accounts while acting as his attorney under an EPOA. The Applicant was seeking for SYZ to compensate the estate of the donor/principal for the missing funds.

The Powers of Attorney Act 2014 (VIC) (“POAA 2014”), unlike the current Queensland version, expressly gives the Victorian Tribunal the power to hear applications for compensation from an attorney, despite the fact that the principal has died and the EPOA has therefore ended. The POAA 2014 also expressly recognises enduring documents made prior to commencement of the 2014 Act (old EPOA’s) as if they had been made under the current act.

The application was only not successful in this particular case, as the actions alleged to be in breach of the POAA 2014 occurred in 2013, before the POAA 2014 was enacted. It was therefore held that the attorney could not be held to have breached an act that did not exist at that time. Presumably though, for questionable acts of an Attorney under EPOA’s active after 1 September 2015 in Victoria, such claims will be able to be brought in the Tribunal, and orders made accordingly.

The Queensland Position

The current state of the law in Queensland is that these types of applications can only be made in the Supreme Court of Queensland, at considerable additional expense to the parties involved when compared to bringing an action in the Queensland Civil & Administrative Tribunal (“QCAT”).

  • If you are concerned that an attorney is acting improperly, this can be addressed with an appropriate application to QCAT while the principal is alive in relation to the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).
  • If the principal has passed away, as in the case of YDM above, you will need to apply to the Supreme Court for compensation orders, and this application must be made within 6 months of the date of the death of the principal.

Whether or not Queensland will follow the example of Victoria in giving our Tribunal, QCAT, the power to deal with these claims in the future remains to be seen. Such a change would be welcomed by many, as evidenced by the number of applications that have come before QCAT already on this very point, only to be dismissed as QCAT does not have jurisdiction to make the orders requested under the current legislation. 

Turner Freeman Lawyers – Wills & Estates specialists

Should you have any queries whatsoever or wish to discuss your options regarding Enduring Power Of Attorney or deceased estates, please do not hesitate to contact Turner Freeman Lawyers Wills and Estates Team on (07) 3025 9000. Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.