Australia:
How to dispute a power of attorney or permanent guardian in NSW
July 07, 2021
Stacks law firm
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When you appoint permanent power of attorney or guardian, you trust that when you no longer have the mental capacity to do such things yourself, that person is doing what is right for you and your affairs. However, if this person is not working in your best interests or doing something that affects loved ones, you may have to contest a power of attorney or permanent guardianship.
Powers of attorney and agents give you important powers in your affairs
Granting permanent power of attorney or guardian gives another person or persons very significant authority over your personal and financial affairs should you lose your legal capacity.
You can make decisions that you might not have made yourself if you could still have made them.
Nevertheless, these appointments are neither monitored nor are they notifiable to an authority.
What if the lawyer or guardian makes bad decisions?
Due to the lack of oversight over the appointment of proxies and permanent guardians, it is generally left to the relatives of the individual to contest the appointment if poor decisions are made or questions about the appointment arise.
There are two ways to challenge or review a standing power of attorney or appointment as a guardian.
This is done by filing with the NSW Civil and Administrative Tribunal (NCAT), which is by far the most popular route chosen, or by filing with the NSW Supreme Court.
How to dispute a power of attorney or permanent guardian through NCAT
If you or your loved ones are concerned that your lawyer or guardian is not making decisions in your best interests, you can apply to NCAT to review the appointment and get assignments.
NCAT can also do this if questions about your mental performance arise when making an appointment.
NCAT can cancel, suspend, confirm or change the appointment. To do this, however, he must ensure that such a measure is in the best interests of the client.
The benefit of reaching out to the NCAT is that the process is generally relatively straightforward and people generally don’t need the assistance of a lawyer to file the application. This also reduces costs to a minimum.
Even so, it can be useful to seek legal counsel if you need help filing an application or have concerns about the procedure.
Case Study – Pressure to make decisions that are not in the client’s best interests
An example of this is a current concern that we are working on for a client with severe dementia who is in a nursing home. Your husband is your agent. Both were already married and each has children from a previous marriage.
The man’s children want him to sell the house that he and his wife owned on the Gold Coast and move to Sydney, where he can buy a new house – on behalf of his children.
The mother’s children resist it, as if the husband continues to sell and buy elsewhere, he is not acting in the best interests of the client – the mother.
Challenge of permanent power of attorney by the Supreme Court
The other option is to go to the NSW Supreme Court. However, because this is much more complex and expensive than applying to the NCAT, it is very rare for people to contest an appointment by the Supreme Court.
Filing a petition with the NSW Supreme Court practically always requires the assistance of an attorney, and often a lawyer, which significantly increases the costs involved.
David Crossan
Anneka Frayne
Powers of attorney and estate planning
Stacks law firm
The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.
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