29/03/2018

While it may seem daunting for some to have to think about one’s eventual death, it may be just as daunting to have to consider who may be an appropriate person to deal with your financial and property affairs if you lose mental (and therefore legal) capacity.

The NSW case of Williams highlighted the serious ramifications where an attorney abused his powers and did not act in the best interest of the appointer.

In this particular case, a father made his son his attorney and the son abused and exploited that power by using a total of $157,000 of his father’s money on holidays, hotel stays, skydiving, car repayments and a deposit on a brand new car for his partner.

The son also opened new accounts to aid the deceit and used credit cards in his father’s name to make thousands of dollars in purchases. The son was sentenced to two years’ imprisonment and served at least 12 months in gaol.

This case highlights the importance of nominating someone that you can trust to act as your attorney, and also serves as a warning to anyone who would otherwise think about taking advantage of a position of trust. The fact that you defraud a close family member doesn’t get you off!

It also reaffirms an attorney’s duty and responsibility to always act in the best interests of the appointer.

If you have any doubts about appointing someone to act as your attorney, you should not appoint them to be your attorney.

Even if you do trust them (for the most part) it might be a good idea to limit the scope of the power of attorney. You could draft the document so that they can only benefit you (not themselves) and in particular that they cannot deal with your superannuation.

It is also important to note that an attorney can also be made to pay back money that was wrongly taken by dishonestly obtaining financial advantage by deception.  Of course the problem is that if they’re stealing from you it’s probably because they don’t have any assets themselves which would be available to you to permit the refund.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.