Son who held power of attorney ordered to repay $21,420.87 to his father’s estate (VCAT, 2026)

What happened

In March 2018 a man appointed his son as his attorney for financial matters under an enduring power of attorney. An enduring power of attorney is a document that lets someone else (the attorney) deal with your money and property, including after you lose the ability to make your own decisions. The person who signs it is called the principal. The appointment started straight away. The father had been diagnosed with Lewy body dementia in 2017, and clinical notes recorded that his decision making slowly declined and that he became suspicious of people around him, including accusing his son of taking his money. He revoked the appointment in July 2020 and died in April 2023.

Probate, the court's confirmation that a will is valid and that the named person may administer the estate, was granted to the man's daughter in December 2023. The will left everything to her. The son made a claim against the will in the County Court, which settled with a payment to him out of the estate. Documents disclosed in that case led the daughter to believe money had been taken during the period when her brother was the attorney, and in February 2025 she applied to VCAT.

Two sums were at the centre of the case. The first was $40,000 said to have been hidden in the father's home, possibly in a camera case. Nobody gave evidence of having seen it. The daughter relied on phone conversations with her father in 2016, a 2019 police report, and a Facebook exchange in which she asked her brother whether he was sharing around "the 40k dad said he had" and he replied "Would that peek your interest if I said yes". A law firm's file note of a February 2020 meeting with the father recorded that he said his only funds were in two ANZ accounts and that he never mentioned $40,000.

The second sum was an ANZ account opened in July 2018 with $13,426.97. Over two years money went in and nothing came out. On 5 June 2020 the son used his authority as attorney to close the account and take $21,420.87 in cash. A month later, on 7 July 2020, his father revoked the power of attorney. The son said his father was a compulsive gambler, that the money was given to him and probably spent on the pokies, and that the only record he kept was an exercise book, which he destroyed after the County Court case ended.

What each side wanted

The daughter, as executor of the estate, asked VCAT to order compensation of $69,420.67 plus penalty interest. She said her brother had withdrawn money without permission, used it for his own benefit, failed to keep accounts, taken the $40,000 in hidden cash, and taken the proceeds of personal items sold in 2019. She also asked VCAT to decide the case in her favour without hearing it out, under section 78 of the Victorian Civil and Administrative Tribunal Act 1998, because he had repeatedly ignored orders to file a defence. The son filed no formal defence. In a written statement and at the hearing he denied the allegations entirely, said he knew nothing about any $40,000, and said the $21,000 was "outside the duties of the POA".

What the tribunal decided

VCAT ordered that the attorney compensate the estate of his father in the amount of $21,420.87. All other claims were dismissed.

The tribunal refused to decide the case summarily under section 78. It also refused penalty interest, which is an extra charge that runs when a payment is late, because the liability only came into existence on the day the order was made, so nothing was yet overdue.

The $40,000 claim, the further sum of about $8,000, and the claim about the sold household items all failed.

Why the tribunal decided it that way

The Powers of Attorney Act 2014 (Vic) sets out what an attorney must do. Section 63 requires an attorney to act honestly, diligently and in good faith, to exercise reasonable skill and care, not to use the position for profit, to avoid conflicts of interest, and to keep accurate records. Section 66 requires accurate records and accounts of all dealings and transactions for financial matters. Section 77 lets VCAT order an attorney to compensate the principal for loss caused by breaking those rules, and it says compensation is payable to the estate even if the principal has died and even if the power of attorney has since been revoked.

On the ANZ account, the tribunal rejected the son's position that the $21,420.87 was outside his duties. He used his power as attorney to withdraw it, so he was responsible for it, and his duties continued until the appointment was revoked in July 2020. He gave no reason for closing an account that had sat untouched for two years as a safe place for his father's savings, and no reason for taking a sizeable sum in cash when a card could have been arranged, in a situation where money had already gone missing and his father had already accused him of stealing. He was required by law to keep records and to make them available to the executor, and he destroyed the only record he had. The tribunal was comfortably satisfied he had breached his duty to exercise reasonable skill and care and his duty to keep accounts.

On everything else, the problem was the evidence. The person bringing a claim has to prove it, on the balance of probabilities, meaning more likely than not. Where the allegations are serious, the tribunal applied the approach from earlier cases that clear and cogent evidence is needed, assessed with care and caution, and that reasonable satisfaction cannot rest on "inexact proofs, indefinite testimony, or indirect inferences". There was no evidence that the $40,000 ever existed, where it came from, or what became of it, and nothing to show the attorney ever dealt with it in that role. The police report recorded no evidence of a theft and was filed for future reference only. An oblique Facebook reply was not evidence. The sold household items were sold on the father's own instructions with the help of a support worker, with no involvement by the attorney at all.

On the request to decide the case without hearing it, the tribunal accepted that the son had repeatedly failed to file a defence, but held that section 78 is a remedy of last resort, not first resort, and that case management should not ordinarily shut a party out of running their case. The daughter had been able to prepare and present everything she wanted, and the gaps in her brother's material counted against him, not her, so she had not been disadvantaged.

What this means if you are in a similar position

This decision shows how VCAT treats the record-keeping duty under an enduring power of attorney. If you are in a similar position, looking at money handled by someone acting as an attorney, the decision shows that the duty attaches to whatever the attorney touches using that power, and that it runs until the appointment is revoked. It also shows that destroying or never keeping the accounts does not make the question go away: the attorney who could not explain where a withdrawn sum went was the one who had to make it good, because the duty to account sat with him.

The other half of the decision shows the opposite side of the same coin. Suspicion, family history and remarks that sound like an admission did not carry a claim about cash nobody could show had existed. Where an allegation is serious, the tribunal looks for clear and cogent evidence of the money, of what happened to it, and of the attorney actually dealing with it in that role. Documents from a bank or a file note that pins a sum to a date tend to do work that inference does not. The decision also shows that a tribunal will usually hear a case out even when the other side has ignored directions, and that interest generally runs only from the date an order is made, not from when the money went missing.

In disputes of this kind, most people start by putting the request in writing: a letter that sets out the dates, the amounts and the transactions in question, asks for the records and accounts the law requires the attorney to keep, and gives a deadline. Only if that produces nothing does an application to the tribunal usually follow.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: The Estate of LSJ [2026] VCAT 854 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.