Abuse of enduring power of attorneys and real estate transactions in Australian courts
| Date | 22 September 2022 |
| Pages | 1220-1230 |
| DOI | https://doi.org/10.1108/JFC-08-2022-0175 |
| Published date | 22 September 2022 |
| Subject Matter | Accounting & finance,Financial risk/company failure,Financial crime |
| Author | Tracey West,Nicholas Drew |
Abuse of enduring power of
attorneys and real estate
transactions in Australian courts
Tracey West and Nicholas Drew
Department of Accounting, Finance and Economics,
Griffith University, Brisbane, Australia
Abstract
Purpose –The purpose of this study is to highlight how people acting as Enduring Power of Attorney
(EPoA) abuse theirprivilege in relation to real estate transactions through analysis of five court cases. This
studythereby provides insight intohow and why adult children cross the lineinto the realm of misconduct.
Design/methodology/approach –The approach involved a review of various court proceedings
relatingto elder financialabuse, 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 revealedsome key commonalities and that property and living arrangements are
the issues highlycontested in courts for small estates.
Practical implications –The case review provides som e critical findings that are valuable for wealth
management professionals or managing an ageing person’s care and living arrange ments. It provides
practical insights for the imp ortance of independent legal and financial advice when entering real estate
transactions. The findings also inform real es tate agent practice in helping to reduce e lder financialabuse
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 wi th
appropriate care.
Originality/value –A review of cases relating to EPoA in relation to real estate is novel and makesan
important contribution to developing resources to educate Attorney’sandfinancial service professionals,
includingreal estate agents.
Keywords Enduring power of attorney: EPoA, Financial abuse, Inheritance impatience
Paper type Research paper
Introduction
Elder abuse is a complex issue that harms the elderly, families and society. The wealth
management industry is increasingly aware of the role they inadvertently play in
facilitating an abuser to perpetrate financial abuse and are improving detection and
reporting mechanisms. Largeorganisations have the resources to train staff and embedred
flag identifiers in their systems,but smaller firms are resource constrained. This articleaims
to provide distilled knowledgeto wealth management professionals on current principles of
law involved in the misuse of Enduring Power of Attorney (EPoA) in real estate
transactions.
The World Health Organisation(WHO) (2017) defines elder abuse as,
[...] a single, or repeated act, or lack of appropriate action, occurring within any relationship
where there is an expectation of trust which causes harm or distress to an older person.
The work of Feltner et al. (2018) buildson this definition, arguingthat,
JFC
30,5
1220
Journalof Financial Crime
Vol.30 No. 5, 2023
pp. 1220-1230
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-08-2022-0175
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1359-0790.htm
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