Abuse of enduring power of attorneys and real estate transactions in Australian courts

Abstract

Purpose The purpose of this study is to highlight how people acting as Enduring Power of Attorney (EPoA) abuse their privilege in relation to real estate transactions through analysis of five court cases. This study thereby provides insight into how and why adult children cross the line into the realm of misconduct. Design/methodology/approach The approach involved a review of various court proceedings relating to elder financial abuse, and the synthesis of the important facts and judgements made that constitute unconscionable conduct, undue influence and passive acceptance of benefit. The cases selected focus on real estate transactions. Findings The research revealed some key commonalities and that property and living arrangements are the issues highly contested in courts for small estates. Practical implications The case review provides some critical findings that are valuable for wealth management professionals or managing an ageing person’s care and living arrangements. It provides practical insights for the importance of independent legal and financial advice when entering real estate transactions. The findings also inform real estate agent practice in helping to reduce elder financial abuse through robust checks if an Attorney is acting on behalf of a Principal. The authors also support improving EPoA guidance and professionalization to assist Attorney’s to carry out their duties with appropriate care. Originality/value A review of cases relating to EPoA in relation to real estate is novel and makes an important contribution to developing resources to educate Attorney’s and financial service professionals, including real estate agents.