NCAT, in its Guardianship Division, performs important work but there are real limits to what it can do. No doubt, in appropriate cases, the Guardianship Division of NCAT can appoint a guardian or a financial manager or it may be able to review a power of attorney. What NCAT cannot do is provide legal redress, by way of damages, compensation or equitable compensation where a money or property was removed improperly from someone who no longer has the capacity to manage their affairs. For such applications it may be necessary to bring an application to the Supreme Court.
Example of Financial Abuse of an Elder
When people age they may suffer from an inability to manage their financial affairs and as such rely on relatives, including spouses and children, to help them by acting as their attorney. An attorney has an important role in terms of helping those who have trouble looking after theyr money and property. Unfortunately, sometimes and for some attorneys it is all too tempting to have full access to bank accounts, super funds and so on. In such cases the attorney may improperly transfer the elderly person's money and property either to themselves or perhaps to third parties, such as their spouse or children, in an attempt to place it all beyond the reach of the law. Sometimes, the attorney improperly uses the property of the aging relative in a manner that is inconsistent with their role as attorney such as by perhaps residing rent free in a property that is owned by the person affected.
At some point the impropriety (or perhaps failure to take appropriate action) on the part of the attorney may come to the attention of other siblings (or family or friends) of the person who suffers from an incapacity. At this point it is quite common for the matter to be raised with NCAT in its Guardianship Division and often as part of an application to review a power of attorney or to appoint a financial manager. Sadly, NCAT has no power to order damages or equitable compensation in these contexts whether against the primary wrongdoer or against a third party who has taken receipt of the property (or who has otherwise benefited). Naturally, this causes a great deal of frustration to the applicants before NCAT who often spend a great deal of time and energy raising the issues that NCAT ultimately cannot deal with.
How to Recover Money or Property from Wrongdoers and Third Parties
Given that NCAT cannot help with the recovery of money or property from the primary wrongdoer or third party where money or property was improperly dealt with by an attorney it is necessary to approach the Supreme Court - which often costs a substantial sum of money and is only really justified where the amounts involved are substantial. If the matter is brought before the Supreme Court a range of orders can be sought to try and redress the wrongs done by the attorney.
Essentially, a claim against an attorney (or a third party) in this context would need to rely on equity to seek equitable compensation against those who improperly benefited. No doubt, the attorney may seek to raise a range of defences such as informed consent on the part of the person (who may lack capacity) in which case the court will closely examine what the power of attorney permitted and whether in truth there was proper consent. It may come as a suprise to some but the Supreme Court can in some cases also order third party recipients (or those involved in the participation of the wrong) to pay compensation.
How We Help
If you are prepared to fund an application to the Supreme Court against an attorney who improperly took money or property from someone lacking capacity we can explain to you the legal options available, and help you to pursue them.
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