Powers of Attorney Disputes
Aptum runs disputes over the making, misuse, revocation and enforcement of powers of attorney, including recovery of assets misused by an attorney, applications to remove or replace an attorney, and defence of attorneys under attack. Substantial matters, in the principal's lifetime and after death.
What is a powers of attorney dispute?
A power of attorney is a legal document by which one person (the "principal") appoints another (the "attorney") to act on their behalf. In its financial form, the attorney can operate bank accounts, deal with property, and make decisions about the principal's assets.
An enduring power of attorney continues to have effect even if the principal loses capacity. This is why the enduring version is used in most modern estate planning: it means that if the principal develops dementia, has a stroke, or otherwise loses capacity, their affairs can still be managed by the person they trusted enough to appoint.
Powers of attorney disputes arise when the attorney misuses the authority (spending the principal's money on themselves, making gifts to themselves or family members, transferring property, mixing funds), when family members disagree about the attorney's conduct or the propriety of the appointment, or when the validity of the power itself is contested (typically because the principal lacked capacity when they signed).
These matters overlap significantly with financial elder abuse. Where the principal is elderly and the attorney's conduct is exploitative, the appropriate service is often the Elder Abuse service. Where the conduct is at the more technical end (unauthorised gifts, poor accounting, conflict of interest), this page is the starting point.
"The whole team from the top of Aptum Legal down to the support team have all been very professional and always gone above and beyond for me and my family. I will highly recommend them for future work with people in my network needing legal professionals."
Types of POA disputes Aptum runs
Applications to revoke a power of attorney
Where the principal (with capacity) wants to revoke a POA and the attorney is resisting the revocation, or where a third party challenges the effectiveness of a revocation.
Applications to remove an attorney
Where the attorney has become unfit to continue (misconduct, conflict of interest, breach of duties), an application can be brought to remove them. Depending on the state, this is heard by the state civil and administrative tribunal (VCAT, NCAT, QCAT and equivalents) or by the state Supreme Court.
Recovery of assets misused by an attorney (principal alive)
Where the attorney has used the principal's assets for their own benefit or otherwise outside the authority conferred, recovery actions can be brought in the principal's name (with authority from a properly appointed litigation guardian if the principal lacks capacity).
Recovery of assets misused by an attorney (after the principal's death)
The attorney's duty to account survives the principal's death. Where the executor discovers that the attorney has misused the principal's assets during the principal's lifetime, the executor can bring a recovery action for the benefit of the estate. This is often where POA misuse is first uncovered.
Challenges to the validity of a POA
Where the principal lacked capacity at the time they signed the POA, or where the POA was procured by undue influence or fraud, the POA can be challenged. The evidence framework is similar to a challenge to a will's validity.
Attorney accounting applications
Attorneys have a duty to keep records and to account for their dealings. Where accounts have not been kept, or where the accounts provided are inadequate, an application can be brought to compel an accounting.
Disputes between joint attorneys
Where more than one attorney has been appointed (jointly or jointly and severally), disputes between them about how the power should be exercised are common. Court or tribunal advice can be sought.
Applications to make gifts or benefit the attorney
Most modern POA legislation restricts the attorney's ability to make gifts to themselves or to related parties. Where the attorney wants to make a gift (e.g., to a family member or to charity, or to themselves as a reimbursement), formal approval from the tribunal or court may be required.
Guardianship and administration crossover
Where the principal has lost capacity and there is no valid POA in place (or the POA is not working), an application can be brought to appoint a guardian and administrator. This is heard by the state civil and administrative tribunal in most jurisdictions.
Interaction with an SMSF or family trust
Where the principal is a member of an SMSF, or a beneficiary or trustee of a family trust, the attorney's authority over those structures raises separate technical issues. Cross-refers to Superannuation Death Benefit Disputes and Complex Trust and Estate Asset Disputes.
Defence of attorneys under attack
Aptum also acts for attorneys defending allegations of misuse. Many attorney disputes are driven by family members who disapprove of the attorney's decisions, not by actual misconduct, and a properly defended attorney position can protect the office-holder's reputation and financial exposure.
How Aptum runs a POA dispute
Value conversation
A no-cost first meeting where you set out the POA, who the attorney is, what has been happening, and (in most matters) what the principal's current capacity is. We tell you which forum applies (tribunal or court), what the pathway looks like, and whether urgent orders are needed to protect assets.
Pathways assessment
If the matter is realistic and you want to move forward, we scope it properly, identify the POA document, bank records, transfer records and (where relevant) medical records that will need to be assembled, and give you a costed engagement plan.
Execution
We run the matter. Urgent freezing orders where required, tribunal application or Supreme Court proceedings, negotiation with the attorney, evidence assembly, and (where required) contested hearing.
The attorney's duties in detail
An attorney under a POA is a fiduciary. Their obligations are established by the state POA legislation and by the general law of equity. Key duties include:
Act honestly and in the principal's best interests
The attorney must always act for the benefit of the principal, not for themselves or third parties. Every decision must be justifiable as being in the principal's best interests.
Avoid conflicts of interest
The attorney cannot enter into transactions in which the attorney has a personal interest that conflicts with the principal's interest. Where a conflict is unavoidable, formal authorisation is usually required.
Not confer benefits on the attorney or related parties
Most modern POA legislation restricts the attorney's ability to use the power to benefit themselves, their family members, or entities they are connected with. Some limited categories (reasonable reimbursement, gifts of a personal nature within defined limits) are permitted.
Keep proper records
The attorney must keep records of all financial transactions on behalf of the principal, and must be able to produce those records if requested by the principal (if capable), a court, or the tribunal.
Act within the authority conferred
The POA document itself defines what the attorney can and cannot do. Some POAs are wide (all financial matters), others narrow (specific transactions only). Acting outside the conferred authority is a breach.
Not delegate
Unless the POA expressly authorises delegation, the attorney must act personally.
Consider the principal's wishes
Where the principal has expressed wishes about how their affairs are to be managed (either in the POA itself or in separate directions), the attorney must consider those wishes.
Recovery after the principal has died
A significant proportion of Aptum's POA work involves recovery for the estate after the principal has died. The pattern is common:
- The principal (usually elderly) had appointed an attorney (often an adult child, a spouse, or a family friend) under an enduring POA
- The attorney had access to bank accounts, property, and other assets
- Over months or years, unusual transactions occurred: large withdrawals, transfers to the attorney's own accounts, gifts to the attorney or their family, sale or transfer of property
- The principal died, and the executor (often a different family member or an independent executor) began administering the estate
- Bank records, property records, and other reviews revealed the pattern
- The estate has been depleted by the attorney's conduct, and the executor seeks recovery
How recovery works.
- The executor holds the estate's claim against the attorney
- The claim can be framed as breach of fiduciary duty, unauthorised gift, or (where applicable) undue influence
- Remedies include repayment, constructive trust over property acquired with misused funds, tracing into substitute assets, and interest
- Where the attorney has spent the money, personal liability of the attorney is the remedy; where the attorney is impecunious, tracing into any acquired assets can preserve recovery
Time limits. Recovery actions are subject to state limitation periods (typically 6 years for equitable claims, subject to postponement where the wrongdoer concealed the conduct). Prompt action is important once the misuse is discovered.
Featured case study
Powers of attorney disputes commonly form one part of a broader estate or trust matter, particularly where the principal held wealth across multiple structures. The interaction with family trusts, family businesses, and superannuation is often where the substantial recovery pressure sits.
Read the flagship complex matter in Complex Trust and Estate Asset Disputes.
What's changing in Australian powers of attorney law
Regulatory and community attention on financial abuse via POA has grown sharply
Federal and state parliaments, the Royal Commission into Aged Care, the Australian Law Reform Commission, and the courts have all become more attuned to financial abuse patterns that operate through enduring POAs. This has translated into more rigorous scrutiny of attorney conduct and higher expectations of accounting.
State legislation has been updated in several jurisdictions
Recent years have seen amendments to POA legislation in Victoria, Queensland and other states, tightening requirements for making an enduring POA, expanding accounting obligations, and clarifying tribunal jurisdiction.
Post-death recovery actions are more common
As the population ages and more estates come into administration, executors are more actively reviewing the pre-death conduct of attorneys, and more recovery actions are being brought.
Tribunal jurisdiction and Supreme Court jurisdiction interact
In most states, the state civil and administrative tribunal has jurisdiction over most POA matters (revocation, removal, accounting) while the Supreme Court has jurisdiction over higher-value or more complex recovery claims. Getting the forum right is a threshold strategic question in every matter.
Capacity assessment practice is under scrutiny
Solicitors preparing enduring POAs and medical practitioners assessing capacity for POA purposes are being held to increasingly high standards. Absent or inadequate capacity records at the time of signing are being treated as tending to support validity challenges.
Frequently asked questions
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Can a power of attorney be revoked?
Yes, if the principal has capacity. A written revocation is signed and typically served on the attorney and on any institution that has been relying on the POA (banks, land registries). If the principal has lost capacity, the POA cannot be revoked by the principal but the attorney can be removed by the state civil and administrative tribunal on application.
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What can an attorney do (and not do) with the principal's money?
An attorney can do what is in the principal's best interests within the authority conferred by the POA. That usually means paying bills, managing investments, dealing with property, and generally attending to the principal's financial affairs. What an attorney generally cannot do is use the money for themselves, make significant gifts, or benefit family members, without express authority or tribunal approval.
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What happens if the attorney has been misusing the power?
The attorney can be removed by tribunal application. The attorney can also be sued for breach of fiduciary duty, and any misappropriated assets can be recovered. Where the misuse has been occurring for some time, urgent orders to freeze the attorney's accounts and preserve evidence are often the first step.
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Can I recover assets from an attorney after the principal has died?
Yes. The attorney's duty to account survives the principal's death, and the executor holds the estate's claim against the attorney. Recovery can be for repayment of misused funds, constructive trust over property acquired with misused funds, and tracing into other assets. Time limits apply.
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Do I go to court or a tribunal for a POA dispute?
It depends on the state and the nature of the dispute. In most states, the civil and administrative tribunal (VCAT in Victoria, NCAT in NSW, QCAT in Queensland) handles most POA matters including revocation, removal and accounting. Higher-value recovery claims usually run in the state Supreme Court. In some matters, both forums are used at different stages.
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What if the principal didn't have capacity when they signed the POA?
The POA can be challenged as invalid. The evidence framework is similar to a will validity challenge: contemporary medical records, treating clinicians' evidence, the solicitor's file if a solicitor prepared the POA, and (in contested matters) retrospective capacity assessments by a specialist.
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Can an attorney make gifts?
Only where the POA expressly authorises gifts, where the state legislation permits limited gifts of a personal nature within defined thresholds, or where the tribunal has approved the gift. Unauthorised gifts by an attorney are a breach and are recoverable.
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Can I be removed as an attorney?
Yes, on application to the tribunal (or in some jurisdictions the Supreme Court). The grounds include misconduct, incapacity, conflict of interest, and breach of duties. Being appointed under a POA is not a permanent right; it is a fiduciary office subject to removal if the conduct warrants it.
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What is the difference between a general and enduring power of attorney?
A general POA ceases to have effect when the principal loses capacity. An enduring POA continues to have effect even after the principal loses capacity. The enduring form is what is used in most modern estate planning because its main purpose is to cover the risk of the principal becoming unable to manage their own affairs.
Thinking on powers of attorney disputes
Aptum publishes regularly on the questions that decide powers of attorney disputes matters.
The Aptum powers of attorney disputes team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
Offices
Aptum services estates clients across Australia from three offices.
Get clarity on your powers of attorney matter
POA misuse compounds while it goes unaddressed. Bank accounts get depleted, property changes hands, evidence gets destroyed, and (where the attorney is not solvent) the practical route to recovery narrows over time. If you suspect misuse of a POA, or you are an attorney under attack, or you need to challenge or defend the validity of a POA, book the value conversation this week.
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