A power of attorney is a legal document authorising a person (the appointed attorney) to act on another person’s (the principal’s) behalf. Depending on the type of power given, the appointed attorney(s) may be able to make financial, legal, personal and medical decisions for the principal.
The principal should discuss his or her options with their lawyer as this is a position of great responsibility and careful thought should be given to whom is appointed.
Powers of attorney should be kept in a safe place such as a lawyer’s office or a bank. Also, the principal and their attorney(s) should keep certified copies of your power(s) of attorney.
In Victoria there are four main types of powers of attorney:
The principal is the person who gives the power of attorney to another person. For a power of attorney to be valid, it must be in writing. Also, the principal must be over 18 years of age and have decision-making capacity. Decision-making capacity means the person can understand, retain, evaluate and weigh up relevant information and communicate their decisions.
The principal must understand:
The attorney is the person who is given the power to act on the principal’s behalf. The attorney must be over 18 years of age and:
The attorney should be someone you trust, and someone who you think will look after you and your affairs the way you would look after them yourself.
Documents signed by your attorney on your behalf should include a note stating they sign in their capacity as your attorney.
A general non-enduring power of attorney authorises a person or persons to act on your behalf for specific purposes. You can determine the scope and terms of the power by specifying in the appointment what you are authorising your attorney(s) to do.
For example, you could grant a general non-enduring power of attorney to:
The general power ends once your attorney has completed the task or tasks you specified or when you withdraw it. Your lawyer can advise you how the power can be withdrawn.
A general power of attorney ceases immediately when the principal dies, becomes bankrupt or permanently loses capacity to run his or her affairs.
An enduring power of attorney authorises the attorney to make financial and/or personal decisions on your behalf. A financial power includes anything related to your financial or property matters. Personal matters relate to personal matters, such as your lifestyle. An enduring power of attorney differs from a general power of attorney in that the authority to act on your behalf does not cease if you become physically or mentally incapable of managing your own affairs.
Many elderly people grant enduring powers of attorney in case of future situations where dementia or a medical condition later inhibits their ability to manage their affairs.
A principal of an enduring power of attorney must have decision making capacity at the time the power is made and signed and must be able to understand:
Also, a principal should know something about the nature and extent of his or her financial affairs.
You can appoint different people to make financial and personal decisions. You can provide instructions or place conditions on your attorneys’ powers. You can also appoint more than one attorney to make decisions on your behalf and can have a back-up (called an “alternative”) attorney in case your appointed attorney(s) cannot or will not act on your behalf.
A person appointed as a financial attorney must not be insolvent and must disclose to the principal any convictions of an offence involving dishonesty.
An enduring power of attorney must be in the approved written form and comply with the requirements outlined in the Powers of Attorney Act 2014 (Vic):
An enduring power of attorney (medical treatment) allows you to appoint a person to make decisions about medical treatment on your behalf in the event that you lose capacity for any reason. In the legislation, the attorney is referred to as an “agent”.
Your agent can be a family member, friend or professional person. You cannot appoint more than one person to make medical decisions for you. You can, however, appoint another agent (an “alternate”) in case your original agent is unable or unwilling to make decisions on your behalf. Before an alternate agent acts, he or she must sign a statutory declaration, outlining the reasons why they believe the medical agent is unable to act.
Your agent can agree to medical treatment on your behalf, including your involvement in medical research. Your agent can only refuse medical treatment if:
Where a treatment or procedure:
the agent must apply to the Guardianship List of the Victorian Civil and Administrative Tribunal for a decision before the procedure is carried out.
Your agent cannot refuse palliative care on your behalf, such as food and water and pain relief.
Two independent witnesses – that is, persons other than the medical agent or the alternate agent) must witness the enduring power of attorney (medical treatment) document. One witness must be a person authorised to take statutory declarations, such as a lawyer or a doctor.
For a refusal of medical treatment to be effective:
Powers of attorney and enduring powers of attorney can be withdrawn by signing the appropriate revocation of power of attorney form when the principal still has capacity to do so.
The principal can also revoke an enduring power of attorney (medical treatment) by executing a subsequent enduring power of attorney (medical treatment) under the Medical Treatment Act 1988 (Vic). It is advisable that the actual power of attorney (medical treatment) document and any existing copies be collected from the agent and destroyed to prevent any unwanted future use.
You should give your attorney (and, for medical appointments, your doctor) a copy of the revocation of power of attorney form.
For any enduring power of attorney, anyone who believes your attorney is not acting in your interests can apply to the Victorian Civil and Administrative Tribunal to revoke the power. The Victorian Civil and Administrative Tribunal may revoke the enduring power of attorney if it finds the appointment is no longer serving your best interests.
Under the new Powers of Attorney Act 2014 (Vic), a person who has decision-making capacity can appoint an attorney to support them in making decisions (called a “supportive power of attorney”). The supportive power of attorney can be limited to assisting with financial or personal matters or both, or for a specific purpose. It is different to the general non-enduring power (discussed above) because a supportive power of attorney cannot make decisions on your behalf. Once you lose decision-making capacity, the power automatically ends.
The types of help the attorney can provide are determined by the principal and include one or a combination of:
Importantly, supportive powers of attorney cannot (even with consent of the principal):
Attorneys who assist the principal in these ways are breaking the law and can face criminal charges and financial penalties.
The principal can only appoint one person as their supportive attorney, but, as with other types of powers of attorney, they can appoint another person (an “alternative”) in case the first person is not able or willing to be their attorney.
A person appointed as supportive attorney to assist with financial decisions must not be insolvent and must disclose to the principal any convictions of an offence involving dishonesty.
The person making the supportive power of attorney must fill-in the prescribed form and sign in the presence of two independent witnesses, one of whom must be a person authorised by law to take statutory declarations. Neither witness can be the person(s) appointed as your supportive attorney(s) or related to those persons or related to you. Further, if someone signs the form on your behalf because you are physically unable to do so, that person cannot be a witness to your signature.
Witnesses to a supportive attorney must state that the principal appeared to sign freely and voluntarily in their presence and that they appeared to have capacity to understand their decision.
The person(s) you appoint as supportive attorneys must accept the appointment by signing the prescribed forms in the presence of two independent witnesses.