Disputes and advice / Challenging or defending a power
Challenging or defending a power of attorney
The classic reason to challenge a power of attorney is a late document, signed in hospital or after a diagnosis, in favour of one child. VCAT can declare a power invalid, and it can also uphold one that was signed imperfectly. We act for people on either side. Victorian law.
Challenge a power of attorney: in short
- VCAT may declare an enduring power of attorney invalid only if satisfied of one of four things.
- The principal did not have decision making capacity to make it at the time.
- It did not comply with the requirements of the Act when made.
- Dishonesty or undue influence was used on the principal to make it.
- It was legally invalid when entered into.
- A power declared invalid is void from its commencement.
Capacity at the time of signing
The question is what the person could understand on that day, about that decision, including the six matters the Act lists. See Capacity. The evidence is the medical record around the date, what the two witnesses saw and certified, the lawyer’s or doctor’s notes, and how the document came to be prepared.
Undue influence and dishonesty
Who arranged the appointment, who was in the room, who paid, whether the person saw the lawyer alone, and what changed from any earlier power. Dishonestly obtaining a power to gain a financial advantage or cause loss is also an offence.
Defects in signing
Wrong witnesses, missing certificates, witnesses not present together. A defect does not always end the matter: VCAT may hold the power valid if satisfied that the principal and the attorney intended an enduring power, the principal had capacity, and the principal signed freely or freely directed the signing.
What happens to things already done?
An attorney, or a person dealing with the attorney, who acted in good faith without knowing the power was invalid is entitled to rely on it. VCAT can also rule on the validity of particular transactions.
Defending a power
If you are the attorney under a power that is challenged, the same evidence matters in reverse: the witnesses’ certificates, the lawyer’s file, the doctor’s notes, and your records of what you have done since.
If the power falls, who decides?
An earlier power may revive or not, depending on its terms and on the Act. [CHECK: decide on revival of an earlier power when a later one is declared void from commencement.] If there is no valid power, VCAT can appoint an administrator or guardian. See Guardianship and administration.
Who can challenge a power of attorney
The principal, an attorney, the Public Advocate, the nearest relative, or a person with a special interest.
Challenge a power of attorney: what it costs
First advice on the papers with a written plan, $880 including GST.
Next step
Send us the power of attorney and what you know about how it was signed. Send us the documents or call 1800 776 529.
Challenge a power of attorney: the law
- Powers of Attorney Act 2014 (Vic) ss 4, 23, 36, 55, 66, 75, 116 to 119, 122, 135.
Last reviewed: November 2026. This page is general information about Victorian law as at November 2026. It is not legal advice about your circumstances.
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Phone: 1800 776 529
Email: info@enduringpowerofattorney.com.au
Hours: Monday to Friday, 9 am to 5:30 pm
Office: 435 Nepean Highway, Frankston VIC 3199 (by appointment)
We act for attorneys and for families, but never for both sides of the same dispute. Before we start, we check that we have not acted for anyone else involved. [CHECK: confirm this line]