In this Webinar we will look at whether or not you can draft a clause to deal with the issue of conflict transactions, particularly between spouses or between a parent and the adult child who is living with them. We will do this primarily by looking at recent case law around financial decisions and Powers of Attorney.
In Queensland this type of transaction is made more difficult by the existence of a specific statute on the topic, however the absence of that statute does not mean that we have a free pass in NSW. We will look at what is happening in situations where people have tried to give the spouse permission to make conflict transactions, and how the Court or the Tribunal is dealing with those situations.
Can you draft around conflict?
In the Webinar we start by looking at recent case law in the area, because the first question we need to ask is, what is the conflict that we are drafting around? Attorneys are of course in a fiduciary relationship with the appointor, and so in some of the cases the fact that the POA was signed meant that the fiduciary relationship arose prior to the person losing capacity, which is earlier than most of your clients are thinking about it.
So given the fiduciary duty that is owed by the Attorney, how do we protect that Attorney from the allegation of improper conduct? The short answer is, of course, by having the appointor write down their preferences to protect the Attorney. The reality is much more difficult, as clients are not well known for engaging with aged care of their own loss of capacity.
If we cannot draft our way around the issue then what can we do? We discuss that during the Webinar.
Let’s discuss it
Registering for this Webinar will cost $100 per person. You will immediately get the video training, which will look at what is happening in Powers of Attorney, what the trends are in the case law, as well as how we should be handling this in our initial consultations. The Webinar also discusses what is the fiduciary duty that is owed from Attorney to Appointor, can you draft a clause to deal with any potential conflict, and how do you get clients to engage with this meaningfully so that they avoid future intervention from the Public Trustee.
When we run this training live you will be invited to attend for free, but for now you can get the video and the documents and get started today.
NSW Estate Lawyers Facebook Group
Did you know about the free Facebook Group? This is a group for NSW Estate Lawyers to discuss things that are particular to practising Estate law in this State. Here are some examples of things we discussed in July 2026 -
(1) Has anyone recently requested a listing before the Registrar/Probate Judge to deal with a requisition? What form did you use?
(2) What is everyone planning to do in light of the new Guardianship Regulations?
(3) A reminder that registering for AML probably also means you need to update your Privacy Policy, or create one.
We might also share the occasional post that only other lawyers who practice in this area will appreciate. The idea is to help and support each other, and share information that is helpful.
If you would like to join you can just search for “NSW Estate Lawyers” in groups on Facebook, please make sure that you answer the questions. The application will be automatically rejected by the Facebook bots if the questions are not answered.
