Power of Attorney’s, (POA)s, are a vital tool for ensuring the best care for when you are older and may lose mental capacity and may require someone to take care of you in your older years. However, Power of Attorney’s also make the principal (person being taken care of) susceptible to financial abuse, and with 30% of all financial abuse cases involving elder people, Power of Attorney abuse is a common. This article provides suggestion, not legal advice, on actions to take if POA abuse occurs.
If you or another person may be the victim of POA abuse, then one of the first steps would be to request a review of your attorney’s (person handling the principal’s assets), financial dealings with your assets. Since attorneys have a fiduciary duty (duty to keep proper records, act in the principal’s best interest, avoid conflict of interests, etc), they must produce proper documentation of their dealings with the principal’s assets, which can be reviewed by a lawyer or financial agent to check for irregularities and any misconduct. Before confronting the attorney directly, ensure documentation of the suspected misconduct has been gathered and saved.
Next, if the principal has not lost their mental capacity, then the principal can revoke the POA and contact the attorney as well as cut off any remaining access to their assts. If the principal has lost their mental capacity, then another person can refer the matter to the Guardian Division of NCAT, which can freeze their access and appoint a new financial manager.
In all cases of POA abuse, contact a lawyer and the NSW Ageing and Disability Abuse Helpline at 1800 628 221, and contact NSW Police. Ensure all evidence of financial misconduct is saved and ready to be used in court. Before confronting the attorney, gather evidence of the timeline from start of appointment as attorney to present of events, bank statements and correspondence to ensure the attorney cannot do further harm. Sometimes, urgent action may be required to freeze assets and ensure no further harm can be done, so act quickly and preserve all evidence.
A court of NCAT can order the attorney to repay all the money and surrender any assets they stole or bought with the money from the principal’s estate, so recovery of lost assets is fully possible. Remember, while you may feel like there is no recovering, there are legal pathways which can help you recover from POA abuse and you are not alone.