Granting someone power of attorney is a significant legal step, entrusting that person with the authority to make important decisions about your life. However, situations may arise where you find it necessary to revoke this power. For any of a number of reasons, an attorney may not be able to perform their duties adequately, or be unwilling to, requiring their removal.
In Queensland, the Queensland Civil and Administrative Tribunal (QCAT) plays a crucial role in handling applications for the removal of power of attorney. This article explores the process of revoking power of attorney through QCAT and addresses circumstances where an attorney can refuse to act or face obstacles in performing their role.
Understanding the concept of power of attorney
Power of attorney is a legal document that grants an individual, known as the attorney, the authority to make decisions on behalf of another person, the principal. This authority can extend to various matters, including financial, legal, and personal decisions. An attorney has a fiduciary duty to the principal requiring them to:
- act honestly and with reasonable diligence;
- act according to the terms of the document;
- support the principal to exercise their human rights;
- keep money and property of the principal separate from that of the attorney;
- preserve the confidentiality of the principal’s affairs.
When an attorney refuses to act
As mentioned, attorneys are bound by certain legal and ethical obligations, but there are situations where they can refuse to act. These include:
Unavailability or incapacity: If the attorney is unable to fulfill their duties due to unavailability or incapacity, they may refuse to act until they are once again able to perform their role.
Conflict of interest: If the attorney faces a conflict of interest that prevents them from impartially representing the principal’s best interests, they may refuse to act. This situation may arise if the attorney has personal or financial interests that clash with those of the principal.
Refusal by the principal: In some cases, the principal may insist on actions that the attorney deems unethical or illegal. In such instances, the attorney has the right to refuse to carry out those instructions.
An attorney may also be unable to properly carry out their role because of a lack of information provided by the principal on their wishes; legal restrictions preventing the attorney from carrying out certain actions without proper authorization or approval; and financial constraints because of the principal’s financial situation.
Circumstances in which a power of attorney might be removed
A person may revoke an enduring power of attorney and make a new one at any time provided they retain the decision-making capacity to do so. A person with capacity may decide the attorney has breached the fiduciary duty to them, for example by profiting from or otherwise misusing the principal’s financial assets, or making other decisions which do not prioritise the principal’s interests, as outlined above.
The situation is more complex where a person has lost capacity to make decisions on their own behalf, such as suffering from dementia or another age-related condition. In this situation an immediate family member, relative or friend may make a complaint about the attorney’s conduct which eventually results in their removal.
Before making an application to QCAT to revoke the power of the attorney, the complainant/s should consider approaching Queensland’s Office of the Public Guardian, which is empowered to investigate complaints and allegations about the actions of an attorney, guardian or administrator. Depending on the outcome of the investigation, the Public Guardian can suspend the operation of all or some of an attorney’s power if it suspects, on reasonable grounds, that the attorney is not competent.
Applications to QCAT – the process
In Queensland, QCAT is the designated authority for handling disputes and applications related to power of attorney. If you wish to remove power of attorney, you can submit an application to QCAT outlining the reasons for the revocation. The tribunal will assess the case and make a decision based on the best interests of the principal.
To successfully remove power of attorney, you must demonstrate valid grounds for the revocation. Common grounds may include the attorney’s failure to act in the best interests of the principal, a breach of fiduciary duty, or a breakdown in the relationship of trust and confidence between the principal and the attorney. Providing clear evidence supporting your case is crucial in QCAT proceedings.
QCAT carefully considers the evidence presented by both parties and makes a decision based on the best interests of the principal. It can make a range of orders, including:
- a declaration about whether an adult has capacity to make an enduring document;
- an order about the validity of an enduring power of attorney;
- an order removing an attorney;
- an order changing the terms of the document;
- an order revoking (cancelling) the document;
- an order giving directions, advice or recommendations or;
- an order granting leave for an attorney to resign.
Speak with our legal specialists
Removing power of attorney in Queensland is a serious legal matter that involves careful consideration and requires an understanding of the grounds for removal, the circumstances under which an attorney can refuse to act, and the obstacles they may face. QCAT plays a pivotal role in ensuring a fair resolution to power of attorney disputes, emphasizing the importance of an impartial and transparent legal process. If you need more information on the process of removing a power of attorney, and require a representative who can put your case to the Public Guardian or at QCAT, contact our experienced team at Big Law as soon as possible.
