For more information about Powers of Attorney (POA) in Victoria Australia, please read our articles:Powers of Attorney & Statutory declarations in Victoria
We strongly recommends that everyone over 18 years consider making powers of attorney.
What is a Power of Attorney?
- A Power of Attorney is a formal document which gives another person (your agent) the authority or the right to make and carry out decisions for you.
- The power can be specific to a certain task or broad to cover many financial and legal duties.
- The power can be given to start immediately, or upon mental incapacity.
Why would I need a power of attorney?
In the unfortunate event that you become incapacitated due to illness or injury, having a power of attorney in place gives your family members and loved ones’ comfort in the knowledge that whomever you have appointed has the authority to look after your legal, financial and/or your personal affairs and interests. Ask yourself what your family would do if they did not have the power to access bank accounts or manage your business affairs if you were in a car accident and ended up in a coma. If you do not have a power of attorney in place the court will appoint someone to take care of your legal and financial needs. This potentially means that you could have someone who you do not want to be your attorney making decisions on your behalf.
Recent Legislative updates combine the Enduring Power of Attorney (financial) and Enduring Power of Guardianship into one Enduring Power of Attorney. It allows for an Attorney to be appointed that can arrange management of both financial and personal matters. The Medical Treatment Planning and Decisions Act 2016 no longer allows Enduring Powers of Attorney (Medical Treatment) to be made and instead provides for the appointment of a medical treatment decision maker. It also allows for a person to contemplate ‘end of life plans’ through the creation of an Advanced Health Care Directive.
Types of Powers of Attorney in Victoria
- General non-enduring power
A general non-enduring power of attorney is usually made when a person is unavailable for a period of time and wants someone to make financial decisions for them during that period. For example, when someone travels overseas and wants to give someone the authority to make decisions regarding their property and finances while they are away. A general non-enduring power of attorney becomes invalid if you become unable to make your own decisions.
- Supportive attorney
A supportive attorney provides assistance to those individuals who are able to make various decisions themselves but who need support to make and act on those decisions. They promote the autonomy and dignity of those persons. It is especially helpful in promoting the rights of people with disabilities.Anyone over the age of 18 years who has decision making capacity to make the appointment can make a supportive attorney appointment. The appointed person has access to information from third parties, such as hospitals and banks and can communicate the decisions of the appointer and give effect to them.
- Enduring power of attorney
Enduring powers give the appointed attorney the authority to act when the person who appointed them ceases to have capacity to make their own decisions. The person appointed can make decisions relating to financial matters (including legal matters), personal matters, such as were the person lives or both.
What Should I Consider when Making A Power of Attorney?
- Who do you want to manage your finances?
- What instructions will you give them?
- Will it be limited or general?
- Do you want more than one attorney,
- and if you want more than one, are they to act jointly or jointly and severally?
- If your attorney can't act or continue to act, do you want to name a substitute?
When making decisions for you, your attorney must:
- act in your best interests
- wherever possible, make the same decision that you would make
- keep accurate records of dealings and transactions
- avoid situations where there is a conflict of interest
- keep your property and money separate from their own.
When does it start?
You can nominate when your attorney’s power starts. On the form you are asked if you want the attorney to begin:
- on a specified date
- on a specified occasion.
Your attorney’s powers only begin after they have signed the statement of acceptance on the form.
If you do not select one of these options the power begins immediately.
If you choose to start it immediately, your attorney can act even if you still have capacity, but they must act in accordance with your directions. You can also continue to make decisions yourself while you have capacity.
If the power comes into effect once you have lost capacity, the attorney may have to prove that you have lost capacity. This usually requires some medical evidence. It is wise to give your attorney permission to speak to your doctor about your health so they can get this evidence.
Limiting your attorney’s powers
You can limit how you want your attorney to carry out their responsibilities and place conditions on the decisions they make on your behalf.
You can include instructions about what you would like your attorney to do and they must act on these. You can also set out your wishes, but these are not binding on the attorney.
If you have large capital assets, such as property or shares, you can leave clear instructions about how your attorney should manage, distribute or dispose of these assets.
It is better not to place too many restrictions on your attorney’s power, as this may make it difficult for them to make decisions on your behalf. If you do not specify any limits, your attorney will be able to make any financial or legal decisions on your behalf from the time the power of attorney begins until it is changed or cancelled.
Contact us more information regarding Changing or cancelling your powers.
An enduring power of attorney form must be witnessed by two persons who can witness a statutory declaration. They must sign and date the document in the presence of the person making the enduring power of attorney and in the presence of each other.
Even though a general non-enduring power of attorney is not required to be witnessed it is advisable that there be one adult witness present who signs and prints their name and address.
Revoking the Appointment
You can revoke the appointment by telling the attorney or guardian that their power is withdrawn, and by destroying the document and any copies.
Can a Power of Attorney (POA) made in another state be used in Victoria?
-Most POA made in other states are recognised in Victoria. Please call us for a consultation for further clarification.
Can an Enduring Power of Attorney - financial made in Victoria be used in overseas?
-The Victorian POA may be able to be used in another country. The person wanting to use it (the attorney) will need to check its validity with the country in which they wish to use the POA. The attorney should contact the country’s consulate or embassy for further details.
Can a person living overseas make an POA for use in Victoria? Who can witness the document?
-A person living overseas can make a POA so long as that person (the donor) has financial or legal matters in Victoria and is competent.
When making a POA overseas it is important to ensure that the people who are witnessing it can be found in the future so that, if required, they can give evidence that it was actually signed by the donor of the power.
Under the Evidence Act it is required that it be witnessed by:
- an Australian consular officer acting in that country; or
- an ambassador, envoy, Minister, chargé d’affaires, secretary of embassy or legation, consul-general, consul, vice-consul, acting consul, pro-consul, or consular agent of any part of Her Majesty’s dominions who is acting in that role in that country, or
- any person who has the power in that country to take an oath in that country; or
- a public notary (or notary public as known is some countries).
Powers of Attorney Act 2014 (Vic)
Source: we have sourced information from the relevant statutory instruments, from many legal literatures for this article including from the office of the Public Advocate and legal aid Victoria.
Contact us for more information if you need legal advice