Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 12 March 2021.
Mary executed a power of attorney in favour of her daughter Helen, 20 years ago.
Mary, now aged 85 resides in an aged care facility.
Mary has one other child, Frank and a grandson named Ben.
One day, while visiting the nursing home, Mary tells Frank that she is concerned about the balance of her bank account. Frank is aware that Helen has power of attorney and tells his mother that he does not want to cause any trouble in the family and reassures her that there is no reason for concern.
Later that day, Frank discusses Mary’s fears with Ben. The next day Ben visits Mary and using his laptop, they login to Mary’s accounts and discover that $180,000 has been withdrawn by way of multiple withdrawals. Mary, suffering from moderate dementia cannot explain the withdrawals.
Ben does not trust that his auntie Helen would be able to adequately explain the withdrawals and believes that she is misusing her position as Mary’s attorney.
Ben lodges an application with the Guardianship division of NCAT requesting a review of Mary’s enduring power of attorney.
The Tribunal finds that Ben has standing to seek a review on the basis that he has a “genuine concern for the welfare” of Helen.
The Tribunal also finds that it has the power to review Helen’s appointment given the series of unexplained transactions.
By the time of the hearing, Helen has reimbursed the $180,000 into Mary’s account.
The Tribunal rules that despite the reimbursement, it is in Mary’s best interests that Helen be removed as her attorney on the basis that the multiple withdrawals were not made in accordance with the “fiduciary requirements” of attorneys.
The Tribunal appoints Ben as Mary’s substitute attorney.
If YOU would like a particular issue addressed, please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
