Contest Power of Attorney NSW

When You Can Challenge a Power of Attorney

A power of attorney is not unassailable. In New South Wales, any person with a genuine concern about how an enduring power of attorney is being used — or about whether it was validly made in the first place — can apply to NCAT's Guardianship Division for a review.

The most common triggers for a challenge:

The principal lacked capacity when they signed. If evidence suggests the principal did not understand what they were signing — perhaps they had moderate dementia at the time, or they were under the influence of medication — the EPOA may be invalid from inception. The absence of a contemporaneous capacity certificate from a GP makes this challenge significantly easier to mount.

Undue influence or coercion. If one family member pressured the principal into signing, excluded other family members from the process, or selected themselves as sole attorney while other equally suitable candidates were available, NCAT can investigate whether the document reflects the principal's genuine wishes.

The attorney is acting against the principal's interests. Financial mismanagement, unauthorised gifts, co-mingling of funds, failing to pay for care, or self-dealing are all grounds for review. The concern does not need to rise to criminal fraud — a pattern of poor judgment or self-interested decisions is sufficient.

The attorney is unsuitable. Changed circumstances can make a previously suitable attorney no longer appropriate — bankruptcy, a deteriorating relationship with the principal, a move interstate that makes day-to-day management impractical, or health issues that impair the attorney's own capacity.

The NCAT Review Process

An application for review of a power of attorney is lodged with NCAT's Guardianship Division. There is no filing fee.

Who can apply: Any person who has a genuine concern for the welfare of the principal. This includes family members, friends, neighbours, social workers, medical practitioners, and officials from the NSW Ageing and Disability Commission.

Notice to parties: NCAT notifies the attorney, the principal, and any other interested parties (typically close family members) about the application. All parties can attend the hearing, provide evidence, and make submissions.

Hearing format: The hearing is conducted by a three-member panel — a legal member, a professional member, and a community member. The process is less formal than a court hearing. There are no wigs, no rules of evidence in the strict sense, and parties typically represent themselves, though legal representation is permitted.

Evidence: The panel considers medical evidence about the principal's capacity, financial records demonstrating the attorney's management, and testimony from family members and professionals. If you are bringing the challenge, prepare documentation: bank statements showing unusual transactions, medical records from the time the EPOA was signed, witness statements from family members who were excluded from the process, or communications showing pressure or coercion.

Possible Outcomes

NCAT has broad powers when reviewing a power of attorney:

Confirm the EPOA. If the tribunal finds the document is valid and the attorney is acting appropriately, the EPOA remains in force. The applicant's challenge is dismissed.

Vary the EPOA. NCAT can modify the conditions of the EPOA — for example, adding a requirement for co-attorney consent on transactions above a certain threshold, or restricting the attorney's ability to make gifts.

Revoke the EPOA. If the document was invalid from the start (lack of capacity, undue influence) or the attorney has breached their fiduciary duties, NCAT can revoke the EPOA entirely.

Appoint a replacement. If the EPOA is revoked but the principal still needs financial management, NCAT can appoint a new private financial manager or NSW Trustee & Guardian.

Order an accounting. NCAT can direct the attorney to provide a full accounting of all transactions conducted under the EPOA. This is often ordered as a preliminary step before deciding whether to revoke.

What a Challenge Costs

The NCAT application is free, but the practical costs can be significant:

Legal representation. While not required, many applicants engage a solicitor, particularly for complex financial abuse allegations. Legal fees for an NCAT review hearing typically run $2,000 to $8,000, depending on the complexity and whether expert witnesses are involved.

Relationship damage. Challenging a sibling's or parent's EPOA appointment is inherently adversarial. The hearing process surfaces financial records, medical details, and family dynamics that most families would prefer to keep private. Even when the challenge is justified, the relationship cost is real.

Time. Standard hearings are listed within four to six weeks. If the matter requires multiple hearings, expert reports, or financial auditing, the process can extend over several months.

How to Prevent Challenges

The strongest defence against a future challenge is the quality of the original EPOA execution:

• Get a contemporaneous capacity certificate. If the principal has any cognitive concerns, a GP assessment on the day of signing makes a capacity challenge extremely difficult to sustain.
• Use an independent prescribed witness. A solicitor who has no relationship with the attorney or the applicant provides a stronger witness certificate than one who is a family friend of the attorney.
• Include clear conditions. Gifting limits, co-attorney consent thresholds, and record-keeping requirements reduce the scope for allegations of misuse.
• Keep meticulous records from day one. An attorney who can produce a complete ledger of income and expenses, supported by bank statements and receipts, makes an abuse allegation very difficult to prove.

The New South Wales Power of Attorney Kit includes execution protocols designed to withstand scrutiny, safeguard clauses for the EPOA itself, and record-keeping templates that demonstrate the financial transparency NCAT expects.

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