Brikcius v Brikcius [2025] NSWSC 342 highlights the increasing legal difficulties associated with Assets, inheritance, elderly parents, family expectations & enduring powers of attorney. Although attorneys must prioritise the well-being of a principal who cannot make decisions, other matters cannot supersede legal authority or ownership.
An Enduring Power of Attorney (EPOA) is a legal document in New South Wales that allows the principal to appoint a trusted person to make decisions about their financial and legal affairs, even if the principal later loses the mental capacity to do so. This authority stays in effect during incapacity but automatically ends upon the principal’s death.
Key Aspects of an EPOA in NSW:
The Enduring Power of Attorney (EPOA) remains valid even after the principal loses their decision-making capacity, allowing the appointed attorney to step in and manage affairs as necessary. This type of authority encompasses a broad financial and legal scope, enabling the attorney to handle various responsibilities, such as managing bank accounts, property, and other financial assets on behalf of the principal.
However, it is essential to note the limits of the EPOA; it does not extend to personal, medical, or lifestyle decisions requiring an Enduring Guardian. Furthermore, the EPOA automatically ceases any legal effect upon the principal’s death. Given the complexities involved, seeking legal guidance before establishing an EPOA is advisable to ensure adequate management of all aspects.
How the EPOA Operates
1. Choosing an Attorney: The principal nominates someone to act on their behalf if they can no longer manage their affairs.
2. Mental capacity: the principal must be mentally capable when signing the document.
3. Registration Requirement: The EPOA must be registeredwith the NSW Land Registry if real estate is involved.
4. Attorney’s Duties: An attorney must act honestly and, in the principal’s best interests, maintain records and keep the principal’s finances separate from their own.
5. Cancelling the EPOA: the principal can revoke the EPOA at any time, provided they have the mental capacity to do so.
Benefits of an EPOA:
An EPOA provides peace of mind when managing financial affairs, especially when unable to do so. The principal designates someone they trust to handle financial matters to meet their preferences. The EPOA empowers the principal to appoint an attorney to oversee their financial decisions. Additionally, this proactive approach can save time by avoiding the delays often associated with court-appointed financial managers. Moreover, by clearly outlining their wishes in advance, the principal can minimise the potential for family disputes during incapacity, fostering a sense of harmony among loved ones.
The matter
In Brikcius v Brikcius [2025] NSWSC 342, Mirjana Brikcius (the plaintiff), an 88-year-old woman diagnosed with Alzheimer’s disease, is the registered owner of the Vaucluse property, which her son Daniel Brikcius (the Defendant) has occupied since 2002. As the plaintiff’s health has deteriorated and her care needs increased, her other sons—Benjamin and Martin—acting under an Enduring Power of Attorney, have initiated proceedings to recover possession of the property to help cover the rising costs of her in-home care.
Davies J heard evidence that the plaintiff’s geriatrician officially recognised her cognitive decline in 2015 when recommending the plaintiff activate the Enduring Power of Attorney. Since then, the cost of her care at her Canberra residence—where she receives daily assistance—has outpaced her pension income, leaving a significant annual deficit of around $34,000. Benjamin and Martin have been personally covering this shortfall and now say the only practical solution is to sell the Vaucluse property to fund their mother’s ongoing support.
The Defendant has not formally appeared in Court in recent months, citing severe depression and anxiety because of the proceedings. His former solicitor, who ceased acting for him in February 2025, noted repeated difficulties in contacting the Defendant and reported that his client had become “immobilised” by the emotional impact of the case.
Despite his absence at the most recent hearing, the Court considered the Defendant’s affidavit, in which he detailed his long-standing residence at the property, contributions to its maintenance, and conversations with his mother in which she allegedly confirmed her intention to leave the Vaucluse home to him in her Will arguing that his continued residence was not just permitted, but encouraged, especially as he initially moved in to help care for his grandmother.
The Defendant also contests the need to sell the property, suggesting that the attorneys could meet his mother’s financial needs through other means and claiming that the attorneys are acting against her wishes. He asserts that their real motivation is to evict him, not to secure funds for care.
The Court must balance complex issues: the enforceability of an attorney’s powers when a principal’s wishes are uncertain due to cognitive decline, the validity of verbal assurances about inheritance, and the emotional and financial toll of elder care within families.
Brikcius v Brikcius [2025] NSWSC 342 underscores the increasingly common tensions in families where aging parents, declining health, and property wealth intersect. It also highlights the challenges attorneys face in making financial decisions that may conflict with family members’ promises or expectations.
Although the Defendant initially contested the proceedings, he later conceded the key financial facts, accepting that there was a $34,000 annual shortfall between his mother’s income and her care-related expenses. The Defendant acknowledged he could not contribute financially and agreed it was unfair for his brothers, Benjamin and Martin, to continue absorbing the deficit.
Instead of selling the Vaucluse home, Defendant proposed renting it—suggesting a potential rental income of $700 to $1,000 per week, depending on its condition. He submitted an agent’s valuation and said he would be willing to move in with his mother in Canberra. Despite this, the Court found he did not oppose an order for possession and had no legal right to remain.
One of the Defendant’s legal arguments was that his brothers, as attorneys under an Enduring Power of Attorney, exceeded their authority. However, the Court rejected this, relying on comprehensive medical evidence from three professionals confirming the plaintiff’s total incapacity since 2015. Under clause 6 of the Power of Attorney, their authority became effective upon her incapacity—meaning the attorneys lawfully brought and maintained the proceedings.
The Defendant also argued that his mother had verbally promised him the Vaucluse home in her Will and that selling it would defeat her wishes.
The decision
Davies J ruled that even if the deceased once expressed those wishes, they could not override the attorneys’ statutory power to act in the plaintiff’s best interests, particularly where no legal right to occupy the property existed.
Davies J also declined to award the plaintiff an occupation fee despite a request that the Defendant pay $700 per week for continued residence. The judge found there was no prior arrangement for rent, the plaintiff had allowed the Defendant to live at the property rent-free for many years, and the plaintiff had submitted no persuasive evidence of rental value. In contrast, it was the Defendant who had supplied the most concrete rental valuation evidence.
The Court made the following orders:
1. The Court grants the plaintiff legal possession of the property at Unit 3, 115 New South Head Road, Vaucluse, NSW (folio 3/SP10375).
2. The plaintiff is authorised to apply for a writ of possession. However, the plaintiff cannot enforce it before 22 May 2025.
3. The Defendant is ordered to cover the plaintiff’s legal costs for the proceedings.
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