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Enduring Power of Attorney: Is the role right for you?
Featuring: Wills & Estates Partner, Angela Harry

A Britney-sized battle: What can be done when Attorneys or our decision-makers behave badly?

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Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, discusses what can happen if you appoint the wrong administrator or guardian to take control of your affairs.

Introduction

Although it is not something we like to think about, we can all expect that in some point in life, we may not be able to make decisions for ourselves. We may be incapable of making our own decisions because we could lose consciousness or suffer an illness that affects our cognition and ability to really understand what we are doing, especially for financial and legal matters. What can be incredibly difficult to accept is the concept of someone else making decisions for you, especially when they are entirely separate from your own personal or family circle.

A public breakdown and court battle

Britney Spears is one of the world’s most famous pop stars, and her situation shows how guardianship arrangements can be particularly difficult. Recently, Britney was back in the news for her troubles regarding her conservatorship (an officially appointed decision-maker who was put in place following her psychiatric breakdown in 2008). For over 12 years, Britney’s father, Jamie Spears, has been solely responsible for her financial, medical, and professional life decisions, meaning Britney can only make decisions with her father’s approval. The court-supervised arrangement gives Jamie Spears control over Britney’s $47 million estate and personal affairs. As recently as November 2020, Britney’s lawyers have been in court attempting to remove Jamie as Britney’s decision-maker amid suggestions that Jamie and his associates have a conflict of interest in relation to managing her affairs.

Britney has made it clear she is strongly opposed to her father being her conservator. Her lawyer has argued in court that Britney is afraid of her father and would prefer a qualified corporate fiduciary to take over the control of her estate. It is expected that Jamie Spears will continue to aggressively contest the request to push him aside.

The battle over conservatorship continues in court this month as Britney’s lawyer prepares a petition to bring Jodie Montgomery on as a permanent conservator to Britney’s case. Montgomery was temporarily in charge of Britney Spears’ estate in 2019 after Jamie Spears took a break for health reasons.

Appointing a Guardian in Australia – Public Trustees

In Queensland, New South Wales, and Victoria, government organisations, like the Public Trustee in QLD, and independent private organisations or trustee companies can be appointed to manage the financial affairs of someone who is said to lack the capacity to make appropriate decisions for themselves.  Of course, these services are not without their fees and charges. Fundamentally, the role of the administrator of someone’s affairs is to ensure the person’s affairs are properly maintained and looked after, their assets are managed appropriately including preserving and improving their financial position to the best possible extent.

There are general principles that apply for administrators and guardians that include:

  • Recognising the person’s human rights and freedoms;
  • Empowering and supporting the person to exercise their human rights
  • Maintaining the supportive relationships around the person;
  • Maintaining the person’s culture, language, value and beliefs;
  • Respecting the person’s privacy;
  • Ensuring that their decision-making promotes, safe-guards and least restricts the persons rights, interests and opportunities in life;
  • Participate in structured decision-making, which means to ensure that the person should have the support to make their own decisions and consider their wishes wherever possible and where it is not possible then do what is possible to find out what the person’s views, wishes or preferences would likely be for that decision.

Who keeps the decision-maker in check?

The question everyone is asking, however, is who monitors the decision-maker when the decision-maker gets it wrong, or simply does not act in the most appropriate way?

Many people do not realise the true power of an Enduring Power of Attorney and the dangers that can flow from appointing the wrong person to be immediately in charge of all their financial and health-related affairs. Unfortunately, we have seen many cases of sole attorneys being appointed who are trusted family members and who subsequently abuse that trust and use the funds for their own purposes. We have also seen the dire impact had on many vulnerable Australians who have had the Public Trustee appointed as their administrator.

In these cases, it is necessary to take decision-makers who act inappropriately to task.

If an administrator or guardian is not acting in the best interests of the principal, then making an application to the Supreme Court or relevant Tribunal is the next step that must be taken to remove them and replace them with an alternate guardian or financial manager.

Some of the common issues we often see that arise when an administrator is not acting appropriately include:

  1. A lack of response or extensive delays with requests for maintenance or expenses made to the Administrator, having a negative impact on the person;
  2. Excessive fees and charges by the Administrator;
  3. Lack of consideration of the person’s views and wishes (or their family’s wishes) when decisions are being made.

Attwood Marshall Lawyers have taken many of these types of cases on before to represent clients who need an advocate on their side. It can be particularly difficult to navigate the world of guardianship and administration for adults that lack capacity. We believe it’s extremely important to get the right advice if something just does not seem right or your affairs are not being managed properly.

Applying to remove the QLD Public Trustee, NSW Trustee & Guardian or State Trustees VIC

We have acted in many cases applying to have the state public trustee entity removed or replaced across the eastern seaboard. We receive constant enquiries from individuals and their families who have significant issues with their trustees involving gross mismanagement of their finances, failing to properly care for the person in need, failing to manage or maintain their assets, and charging excessive fees.

Read more: Review of Queensland Public Trustee’s fees and charges finds shortfall in legal duties and community expectations

Many people do not realise that they have the right to appoint another trustee or to scrutinise what these state government entities are doing (or not doing!). The best thing to do is get some proper advice from lawyers who are experienced in this area. You may be pleasantly surprised by your rights in this area and you may also be entitled to compensation for any losses suffered.

We’re here to help

Atwood Marshall Lawyers is a leading guardianship and administration law firm with one of the largest and most experienced Estate Litigation teams in Australia. If someone you know is not getting the right treatment, we can help you by giving you advice and supporting you through the steps to address the issues head on.

We can assist anyone experiencing problems with the Public Trustee, including matters:

  • Involving the mismanagement of affairs under financial management orders
  • Involving the mismanagement of estates where the state Public Trustee has been appointed Executor
  • Where exorbitant fees have been charged, we can help you negotiate with the Public Trustee
  • Where you seek the removal of the Public Trustee and wish to apply to the court to appoint an alternative Trustee.

If you would like to discuss your matter, please contact our Estate Litigation Department Manager, Amanda  Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071 at any time.

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Lucy McPherson

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