Understanding Powers of Attorney in VIC

What is a Power of Attorney?  

A Power of Attorney is a legal document that appoints a person or people (the ‘Attorney’) to make decisions on your behalf should the need arise. The person that makes the Power of Attorney is known as the ‘Principal’. The Principal decides the types of decisions the Attorney can make, including on financial and personal matters.

It is important that you get legal advice about appointing an Attorney. A solicitor can consider your circumstances and advise you about which powers to give to an Attorney and the consequences of making the appointment. You should carefully consider the person/s you are appointing as your Attorney because you are appointing them to make important decisions for you.  

Different types of Powers of Attorney

There are three types of Powers of Attorney in Victoria:

• General Power of Attorney 

• Enduring Power of Attorney

• Appointment of Supportive Attorney

Both the General and Enduring Powers of Attorney appoint another person as a substitute decision maker, i.e. someone who will make decisions instead of you if you can’t make them yourself. An Appointment of Supportive Attorney, on the other hand, appoints a person to assist or support a person with a cognitive disability to make valid decisions themselves.

A General Power of Attorney is usually given for a specific period of time. You may appoint an Attorney under this document, for example, if you are going into hospital and need a person to manage your affairs for a short time or for a particular purpose. However, once you lose capacity the General Power of Attorney ceases to operate.

An Enduring Power of Attorney allows the Attorney to make decisions for the Principal from the time specified in the document, and will continue to operate after the Principal has lost the capacity to make decisions for themselves.

An Appointment of Supportive Attorney allows a person with cognitive disabilities to appoint another person to help them make and act on their own decisions, as long as they are capable of making those decisions. This allows a person with a disability to make valid decisions without appointing a substitute decision maker.

Capacity

You must have legal capacity to make a Power of Attorney. Capacity is your ability to: 

• Understand the facts 

• Understand the main choices 

• Weigh up the consequences of your choices 

• Understand how consequences affect you and others 

• Communicate your decision

Your capacity to make different types of decisions can be affected or lost due to illness, disorders such as dementia, or impacts from an accident. 

You must have an Enduring Power of Attorney in place for an Attorney to act after you have lost capacity. It is important to plan for the future and appoint your Enduring Attorney before you lose capacity. 

You can choose for the Enduring Power of Attorney to start straight away or only when you have lost capacity. If you choose the latter, you can include a limitation in the document that a medical report must be provided confirming your loss of capacity before the Power of Attorney will come into effect. 

The Enduring Power of Attorney lasts until either you revoke it or the end of your life. 

The decisions an Attorney can make on your behalf 

Attorneys in Victoria can be appointed to make the following kinds of decisions: 

• Financial – such as paying bills and other expenses, making investments, and selling or buying property. 

• Personal – such as access to support services, healthcare, and decisions about where and with whom you live. 

• Specific financial or personal matters – such as the sale of a business, sale of specific property or shares, or finding a suitable place for you to live. 

You can appoint more than one person to be your Attorney.  You can specify that they can make decisions together or separately, or to make different decisions. You can also appoint an alternative attorney, in case the person you originally appoint is unable or unwilling to continue to act. 

Supportive attorneys can assist the principal to make decisions for personal and limited financial matters, but cannot assist with significant financial decisions such as the sale of a property. 

The Attorney’s duties

The law requires Attorneys to observe the following duties: 

• Make decisions that the Principal would have made and give effect to your wishes and preferences.  

• Manage your affairs responsibly, act in their best interests and keep accurate records.  

• Avoid conflicts of interest, such as not mixing money.

• Act with honesty and in good faith.  

• Work with other decision-makers.  

• Make decisions that are the least restrictive of your freedom.

• Encourage your participation in decision-making, life, and the community.

• Protect you from neglect, abuse, or exploitation. 

• Act within the limits of their appointment – start date, powers, limitations. 

Who to appoint as your Attorney

An Attorney must be 18 years old and should be someone that you trust. As you are appointing someone to look after your financial and personal affairs, you should have confidence that the person or people that you are appointing can make sound decisions on your behalf.

You should also consider practicalities such as where the person lives, how old they are (for example, if they are older that you, is there a risk that they may not be in a position to act as your Attorney in the future due to ill health or cognitive decline?) and their willingness to accept the appointment.    

How to appoint your Attorney

To appoint one or more Attorneys, there is a form that needs to be completed that sets out:

• who you are appointing;

• what decisions you want them to make;

• whether there are any decisions you don’t want them to make; and

• when the appointment will start (such as straight away, or only after you have lost capacity)

Links to the various forms you need to complete for the different types of Power of Attorney, as well as further information and resources, are here:

• General Power of Attorney

• Enduring Power of Attorney

• Supportive Power of Attorney

If you are appointing an Enduring Attorney you will need to sign the form in front of two witnesses, including one ‘special witness’, namely:

• a lawyer;

• a doctor; or

• a person qualified to witness affidavits

Your Attorney also needs to sign the form to accept their appointment.

You should give a certified copy of the signed Power of Attorney to your Attorney and also to Centrelink, your bank and any other financial institution you use. You should keep a list of who you gave a copy of your Power of Attorney to.

Cancelling a Power of Attorney

You can cancel a Power of Attorney at any time as long as you have the capacity to do so. This is done by signing a specific form depending on the type of Power of Attorney you have:

• Revocation of Enduring Power of Attorney

• Revocation of General Non-Enduring Power of Attorney

• Revocation of Supportive Attorney Appointment

You need to send a letter to your Attorney to let them know you are cancelling their Power of Attorney. You should also tell anyone else you gave a copy of the Power of Attorney to.