Compensation orders and offences
An attorney can be ordered to pay compensation
If the attorney contravenes (fails to properly undertake) their duties or obligations under the Powers of Attorney Act and this results in a loss to the principal, the attorney may be ordered by VCAT or the Supreme Court to compensate the principal for the loss.
The attorney can be ordered to pay compensation even if:
- the attorney is convicted of an offence in relation to the attorney's contravention
- the principal has died (in which case compensation is payable to the estate of the principal)and
- the enduring power of attorney is invalid or has been revoked (cancelled).
However, if VCAT or the Supreme Court considers that the attorney acted honestly and reasonably and ought fairly to be excused for the contravention they can relieve the attorney from all or part of the attorney's personal liability for the contravention. Also, if the attorney acted in compliance with any advice, direction or order of VCAT or the Supreme Court (and the attorney did not knowingly give false or misleading information to VCAT or the Supreme Court) the attorney will not be liable.
An attorney can be charged with a criminal offence
An attorney who dishonestly uses the enduring power of attorney to:
obtain financial advantage for themselves or for another person or
cause loss to the principal or another person
can be charged with a criminal offence under the Powers of Attorney Act 2014. The attorney found guilty of committing this offence can be sentenced to up to five years imprisonment or fined a maximum of 600 penalty units (more than $88,000).
If the attorney is a body corporate the fine can be up to 2400 penalty units (more than $350,000). Where a body corporate has committed this offence, an officer of that body corporate also commits the same offence if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.