Christine Smyth Blog

FINANCIAL ABUSE OF THE ELDERLY – Powers of Attorney & Fiduciary Duties The incidence of financial abuse of the elderly is increasing. In this month’s Queensland Law Society Magazine – Proctor, Christine Smyth – QLS Accredited Specialist Succession Law and Tina Cockburn – Associate Professor QUT, analyse the decision of The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor, where an attorney was held to account for breaching her duties. It is important for attorneys to note that while acting as an attorney, you may undertake transactions which result in you also becoming a fiduciary, thereby imposing upon you equitable duties and exposing you to its powerful remedies. They are in addition to your duties under the Powers of Attorney Act 1998 (Qld) and/or the Guardianship and Administration Act 2000 (Qld). In their article Christine and Tina observe that where equitable remedies are available, the court has the power to look beyond the apparent legal ownership, to determine the true ownership in equity. This means that property that might be registered on title as belonging to person A, may in fact ultimately belong to person B. Equitable remedies are becoming increasingly important in Inheritance Law disputes, where the court can use the power of equity to untangle transactions undertaken during the lifetime of the deceased, with a consequential impact upon property that may or may not fall into the estate for distribution.