Financial abuse of elderly parents and misuse of powers of attorney
Reviewed by Justin Chua, principal, Chua Tan Associates · Updated 18 October 2026
In Victoria, a person acting under an enduring power of attorney must act honestly and in good faith, keep the parent’s money separate and keep records. VCAT and the Supreme Court can review an attorney, revoke the appointment and order compensation. Gifts and transfers obtained by undue influence or unconscionable conduct can be set aside, and the estate can usually pursue these claims after the parent dies.
What we see in these disputes
Often one child lives near the parents and handles their banking, while siblings live interstate or overseas. Problems surface when a parent moves into aged care, a sibling asks for statements, or the estate turns out smaller than expected. Typical situations:
- Large withdrawals or transfers to the attorney’s own account, described later as “gifts” or “repayment for care”.
- A parent’s house transferred to one child, or sold, without the other children knowing.
- Joint accounts opened with one child, so the balance passes to that child on death.
- “Granny flat” arrangements, where parents give their home or money to a child in exchange for care and a place to live, and the arrangement breaks down.
Duties of an attorney
Under the Powers of Attorney Act 2014 (Vic), an attorney must act honestly, diligently and in good faith, and exercise reasonable skill and care. An attorney must also:
- avoid conflict transactions (where the attorney or their family benefits) unless expressly authorised;
- keep the principal’s property separate from their own;
- keep accurate records and accounts;
- not profit from the role unless authorised;
- make gifts only within the narrow limits allowed by the Act, such as gifts of reasonable value for customary occasions, unless the power expressly authorises more.
Dishonestly using an enduring power of attorney to obtain a financial advantage or cause loss is a criminal offence in Victoria, with a maximum penalty that includes imprisonment.
In NSW the Powers of Attorney Act 2003 (NSW) applies, with reviews in NCAT or the Supreme Court.
What VCAT can do
A family member or anyone with a special interest in the parent’s affairs can apply to VCAT. VCAT can:
- decide whether the power of attorney is valid;
- suspend, vary or revoke the appointment;
- order the attorney to produce accounts and records;
- decide whether a transaction by the attorney is valid;
- order the attorney to compensate the parent, or the parent’s estate, for loss caused by a breach of the Act.
If the parent has lost capacity, VCAT can appoint an administrator under the Guardianship and Administration Act 2019 (Vic). After the parent’s death, a compensation application should generally be made within six months, although an extension may be possible.
Transfers and gifts before death
Not every gift is abuse. Parents are entitled to help one child more than another. The law intervenes where:
- Undue influence: the gift was the product of the child’s influence rather than the parent’s free will. Where the parent relied heavily on the child, the child may need to prove the gift was freely made, often by showing independent advice.
- Unconscionable conduct: the parent was at a special disadvantage, such as age, illness, language, isolation or emotional dependence, the other party knew or ought to have known, and took unfair advantage.
The remedies include setting the transfer aside, ordering repayment, or declaring that the recipient holds property on trust for the parent or the estate.
Joint accounts and survivorship
A joint account normally passes to the surviving holder. But if the parent contributed all the money and added a child’s name only for convenience, such as paying bills, the court may find the child holds the balance on trust for the estate. What matters is the parent’s intention, so bank forms and messages are important.
Granny flat and family arrangements
Where parents transfer land or pay for a child’s house in exchange for a home and care for life, and the arrangement collapses, the parents may have claims for a constructive trust, an equitable lien, or repayment. Victorian co-ownership disputes can also go to VCAT under the Property Law Act 1958 (Vic). These arrangements are rarely written down, which makes early evidence-gathering essential.
What courts and tribunals have done
- [Bridgewater v Leahy [1998] HCA 66](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1998/66.html): An 84-year-old grazier sold land worth about $700,000 to his nephew, whom he regarded as a son, for $150,000 and forgave the balance. The High Court majority found the nephew had taken unconscionable advantage of the uncle’s emotional dependence, and ordered that the forgiven amount be paid to the estate, secured by a lien over the land.
- [Hanna v Raoul [2018] NSWCA 201](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2018/201.html): An elderly, suggestible uncle facing mortgage default agreed to transfer his home to his nephew, who would pay off the mortgage and let him live there until death. The NSW Court of Appeal set the arrangement aside as unconscionable; the uncle had no protection if the nephew sold or died, and the advice he received did not explain the downside.
- [FJN (Guardianship) [2024] VCAT 310](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2024/310.html): A son acting as attorney for both parents withdrew about $181,500 from their accounts in 2016, moving most to his own account and the rest to his brother. VCAT found he breached his duties, rejected his claim that his father authorised the transfers because the father lacked capacity, and ordered him to compensate the estates in full.
Recovering assets for the estate
After death, the claim usually belongs to the estate, so the executor brings it. Where the executor is the person who took the money, beneficiaries can ask the court to appoint an independent administrator. Equitable claims can be defeated by delay.
Urgent steps
- Ask the attorney in writing for accounts and records.
- Obtain copies of the power of attorney, bank statements and land title searches.
- Where land may be sold or mortgaged, consider a caveat; it must rest on a genuine interest in the land, and lodging one without reasonable cause can lead to a compensation order.
- Where money may be moved out of Australia, the Supreme Court can make a freezing order on an urgent application.
- Where there has been dishonesty, a report to Victoria Police is a separate option.
Costs
At VCAT parties ordinarily bear their own costs, although VCAT can order costs in some cases. In the Supreme Court the losing party usually pays a substantial part of the winner’s costs. Early requests for records often narrow the dispute.
How we help
Chua Tan Associates acts for families and estates in these matters in English, Mandarin and Cantonese. Where both sides are willing, a private resolution can be arranged through the Chinese Australian Dispute Resolution Centre (CADRC). Contact us on +61 3 9602 3988.
FAQs
My brother holds Mum’s power of attorney and will not show us her bank statements. What can we do?
You can ask him in writing, and if he refuses, apply to VCAT for an order that he produce accounts. VCAT can also review or revoke his appointment.
Can an attorney pay themselves for looking after a parent?
Only if the power of attorney authorises it or the law allows it. Payments to the attorney are conflict transactions and need clear authority.
Mum has died. Is it too late to recover money taken under a power of attorney?
Not necessarily. Compensation can be ordered in favour of the estate, but the application should generally be made within six months of death, and equitable claims can also be brought by the estate.
Dad put my sister’s name on his bank account. Does she keep the money?
Not always. If Dad provided all the money and added her for convenience, the balance may belong to his estate.
Our parents gave their house to my brother in return for care, but he moved them into a nursing home. Do they have any rights?
They may. Depending on what was agreed, the court can order repayment, impose a lien or declare a trust.
Talk to us about your matter
Book a confidential consultation in English, Mandarin or Cantonese, or call +61 3 9602 3988.
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General information only, not legal advice. Every matter turns on its own facts. Reviewed by Justin Chua, principal, Chua Tan Associates.
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