Mr Jones had always been adamant that if he were unable to care
for himself he wanted arrangements made so he would be cared for in
his own home. This would not be a problem financially as he had a
substantial investment portfolio. Recently Mr Jones had a massive
medical event and the doctor certified that he has lost his mental
After taking advice from an investment advisor Mary has decided
to change her father's investments to favour increasing income
growth, rather than capital growth. Lucy is very unhappy with this
because Mary's decision is likely to diminish the value of her
As her father's attorney, Mary has put her father's best
interests first. The potential effect on his estate was not a
relevant consideration. Whilst Lucy might be very unhappy with
Mary's decision, there is no basis on which Lucy can legally
By contrast Mary instead decides to put her father into a rest
home, rent out his home to help pay for his rest home care fees and
change the investments to favour capital growth. A major conflict
ensures between Mary and her sister Lucy. What can Lucy do?
A number of options may be available to Lucy:
Given Mr Jones cannot act for himself, Lucy as his daughter can
apply to the Family Court to review Mary's decision. The court
will not always intervene. It will do so where the attorney's
decision undermines the purpose of the Act, where the decision is
irrational, fails to take into account relevant matters or takes
into account irrelevant matters. Mary's decision appears to
fall well within these criteria so that the court is likely to
Another option would be for Lucy to apply to the Family Court
to revoke Mary's appointment as her father's property and
welfare attorney. Again, Lucy's right to apply would be based
on her father's incapacity and Lucy's status as his
daughter. Such action can be taken by any relative.
Even if Lucy does not apply to revoke Mary's appointment
but simply to review Mary's decision, the Family Court can to
revoke Mary's appointment if it is satisfied that Mary is not
acting in her father's best interests or proposes not to act in
his best interests.
Interestingly, the Protection of Personal and Property Rights
Act now provides that where any application is made to the
Family Court regarding attorney decisions the court must revoke the
appointment of the attorney if the court regards that attorney as
unsuitable. What does this mean? It is not defined in the Act, but
one judgment noted that the Court must...
unsuitability of a kind which undermines the ability of the
attorney to exercise his/her responsibility, or misconduct of such
a profound nature that it completely undermines any confidence the
court might have that the attorney could responsibly exercise those
Examples the court gave in that case were the mental or physical
incapacity of the attorney, criminal behaviour by the attorney, or
behaviour that demonstrates a clear inability to exercise good
judgment or an inability to carry out the fundamental tasks of the
Mary's disregard for her father's wishes and apparent
self interest in the investment strategy arguably both point
towards an inability to carry out her fundamental duties as her
father's attorney. Such a finding would see the court bound to
remove Mary as an attorney.
These scenarios involve a single attorney. Similar issues can
arise where a number of attorneys are appointed. The courts role is
the same however many attorneys are involved.
Whilst the choice of attorneys is up to you, there are a number
of considerations to be taken into account to ensure you make the
right choice. Should you wish to discuss your particular
circumstances and the choice of attorney please contact one of our
team to ensure your enduring powers of attorney are tailored
specifically to your needs.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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To ensure that all possible problems are considered and addressed, the transactions must be appropriately documented.
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