If someone is misusing a power of attorney in Victoria, you can act. The Victorian Civil and Administrative Tribunal can review the attorney's conduct, require them to account for their dealings, revoke the appointment and order compensation, and dishonest misuse can also be a criminal matter. The sooner concerns are raised, the more of the principal's money and property can be protected.
In this article
- What does the law require of an attorney?
- What does misuse look like?
- What can be done while the principal still has capacity?
- How does VCAT deal with a misused power of attorney?
- Can the money be recovered?
- Is misusing a power of attorney a crime?
- What should you do first?
- How we help
- Common questions
What does the law require of an attorney?
An enduring power of attorney gives one person, the attorney, authority over another person's money, property or personal affairs. The person who made the appointment is called the principal. Under the Powers of Attorney Act 2014 (Vic), that authority comes with strict duties. An attorney must act honestly, diligently and in good faith, exercise reasonable skill and care, keep proper records of their dealings with the principal's affairs, and generally keep the principal's property separate from their own. An attorney must also avoid conflicts between their own interests and the principal's, which means they cannot use the appointment to benefit themselves or anyone else unless the document or the law expressly allows it, and gifts from the principal's assets are tightly limited. Our guide to enduring powers of attorney explains how these appointments are made and the safeguards built into them.
The reason misuse matters so much is the word enduring. The appointment keeps operating after the principal loses decision-making capacity, which is precisely when the principal can no longer watch what is being done in their name. The law's answer to that vulnerability is the set of duties above, backed by a tribunal with real powers to intervene.
What does misuse look like?
Most misuse is financial, and most of it is committed by someone the principal trusted, often an adult child or another close relative. The warning signs families describe are consistent: unexplained withdrawals or transfers from the principal's accounts, assets sold without explanation, money moving to the attorney or their family while the principal's own bills go unpaid, care needs going unmet despite there being money to meet them, and an attorney who becomes defensive or secretive when asked to explain. Isolating the principal from other family members is another common thread, because it removes the people most likely to notice.
Misuse is not always naked theft. It is often rationalised: an early inheritance, repayment for care the attorney has provided, a loan that was always going to be repaid. The duties do not bend for good intentions. Spending the principal's money on anyone other than the principal is, with narrow exceptions, outside the attorney's authority unless the appointment expressly permits it.
What can be done while the principal still has capacity?
A principal who still has decision-making capacity remains in charge. They can revoke the enduring power of attorney, provided the formal requirements for revocation are met, appoint someone else instead, and tell their bank and the former attorney in writing that the authority has ended. Getting legal advice at this point is worth it, because a revocation that is not properly made and communicated can leave the old document circulating, and because a principal under pressure from the very person they need to remove often needs support to act at all.
Where capacity is uncertain, or the principal is unwilling to act because the attorney is a son or daughter they still love, concerns can be taken to the tribunal by someone else. Doing nothing is the one option that reliably makes things worse.
Worried about how an attorney is using a family member's money or property? Call (03) 9125 8355 or send an enquiry.
How does VCAT deal with a misused power of attorney?
The Victorian Civil and Administrative Tribunal, VCAT, is the main forum for concerns about an enduring power of attorney. The principal, another attorney, or a family member or other person with a genuine concern for the principal can generally apply. VCAT can examine how the attorney has exercised their powers, require them to explain their dealings and produce the records and accounts the law already obliges them to keep, and revoke the appointment where that is the right outcome. Where the principal no longer has capacity and decisions still need to be made, VCAT can appoint an independent administrator for financial matters or a guardian for personal matters; our guide to guardianship and administration orders explains how those appointments work. VCAT can also order an attorney to compensate the principal for loss caused by a failure to comply with the Act.
The Victorian Civil and Administrative Tribunal publishes information about applications concerning enduring powers of attorney on its website. The Office of the Public Advocate also provides advice to people worried about how an attorney is using their powers. Where money is still moving, get advice promptly about seeking urgent orders, because what is spent before anyone intervenes is the hardest money to see again.
Can the money be recovered?
Often, yes, in whole or in part. A compensation order requires the attorney to make good the loss their breach of duty caused, and court proceedings are also available, including where the amounts are large or the dealings complex. Recovery in practice depends on what the attorney still holds: money that has been spent, or moved beyond reach, is harder to recover than money sitting in an account or represented by an asset that can be traced. That is the practical reason speed matters more in these matters than in most.
Claims do not necessarily die with the principal. Where misuse comes to light only after the principal has died, the estate may be able to pursue what was taken, though the position becomes more complicated and strict time considerations can apply, so anyone in that situation should get advice quickly rather than waiting for probate to resolve itself.
Is misusing a power of attorney a crime?
It can be. Victorian law makes it an offence to dishonestly obtain an enduring power of attorney, or to dishonestly use one to gain a financial advantage or cause loss to the principal. Serious misconduct can also amount to offences under the general criminal law, such as theft or obtaining property by deception, and can be reported to Victoria Police. The criminal process and the civil and tribunal remedies run separately: a police report does not itself return the money, and a compensation claim does not depend on a conviction. Families dealing with serious misuse often need both tracks, and advice on how they interact.
What should you do first?
Start a record. Write down what you have seen and when, keep copies of anything you can lawfully access, such as statements the principal can request from their own bank, and locate the enduring power of attorney document itself, because what the attorney was actually authorised to do frames everything. Talk to the principal if it is safe and possible, without the attorney present. Then get advice early, from a lawyer or from the Office of the Public Advocate, about whether what you are seeing is misuse and what application fits. A well prepared VCAT application, with the dealings documented and the orders sought clearly framed, is far more likely to protect the principal quickly than an accusation made in anger at a family gathering.
How we help
Spencer Alexander Lawyers acts for families across Victoria who are worried about how an attorney is handling a parent's or partner's affairs, and for attorneys who need to answer concerns about their own conduct. We advise on whether what you are seeing is misuse, prepare VCAT applications and the evidence behind them, pursue compensation and recovery, and help put proper arrangements in place for the principal's ongoing care and finances. Learn more about our wills and estates practice.
Common questions
Who can ask VCAT to look at an attorney's conduct?
The principal themselves, another attorney, or a family member or other person with a genuine concern for the principal can generally apply to VCAT. The Office of the Public Advocate provides advice about these concerns, and a lawyer can prepare the application so the evidence is in order from the start.
Can an attorney be made to repay money they have taken?
Yes. VCAT can order an attorney to compensate the principal for loss caused by a failure to comply with their duties, and court proceedings are also available. Recovery in practice depends on what the attorney still holds, which is one more reason acting early matters.
Can an attorney use the principal's money for themselves?
Not unless the appointment or the law expressly allows it. An attorney must avoid conflicts between their own interests and the principal's, keep the principal's property separate from their own, and keep proper records of their dealings. Gifts from the principal's assets are tightly limited.
What happens if the person who made the appointment has lost capacity?
They can no longer revoke the appointment themselves, so VCAT becomes the path. VCAT can review the attorney's conduct, revoke the appointment and, where decisions still need to be made for the person, appoint an administrator or guardian instead.
Concerned about an attorney's conduct, or needing to answer concerns raised about your own? Call (03) 9125 8355 or send an enquiry.
This guide reflects the law applying in Victoria as at September 2026. It is general information only, not legal advice, and does not take your circumstances into account.
