A Power of Attorney is a legal document that a person (called the ‘Principal’) uses to appoint another person (referred to as an ‘Attorney’) to make decisions on his or her behalf.
On 1 September 2015, power of attorney laws in Victoria changed. The new legislation is the Powers of Attorney Act 2014 (the Act).
Summary of Changes
The main purposes of the Act are to consolidate and simplify the Enduring Power of Attorney laws in Victoria and to improve some of the protections against elder abuse.
Under the new law, a General Power of Attorney is now called a "General Non-Enduring Power of Attorney." The Act also combined the previous Enduring Power of Attorney (financial) and Power of Guardianship into one Enduring Power of Attorney form.
Enduring Powers of Attorney
The Act combined the previous Enduring Power of Attorney (financial) and Power of Guardianship into the same Enduring Power of Attorney form.
This means that the Enduring Power of Attorney can be used to appoint another person to make financial and personal (including some medical decisions) on the Principal's behalf.
The Act has also made more stringent requirements for the making and revoking of Enduring Powers of Attorney.
Protections Against Abuse
Capacity
One of the purposes of the Act is to improve the protections against the abuse of Enduring Powers of Attorney. You can only make your own Power of Attorney if you have decision-making capacity.
This is defined in the Act as being able to:
understand the information relevant to the decision and the effect of the decision;
retain that information to the extent necessary to make the decision; and
use or weigh that information as part of the process of making the decision; and
communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.
A person is presumed to have decision-making capacity unless there is evidence to the contrary.
Attorney's powers
The Act further aims to protect the Principal by guiding the Attorney's powers and the decisions that they make on the Principal's behalf. An Enduring Attorney must:
give effect to the Principal’s wishes;
encourage the Principal to participate in decision-making; and
promote the Principal’s social and personal wellbeing.
The Act also places further obligations and duties on Attorneys, including a duty to act honestly, diligently and in good faith, and to exercise reasonable skill and care. There are also specific prohibitions against transactions that may cause a conflict and gifts using the Principal's money.
Finally, the Act creates serious offences for fraudulently obtaining or using an Enduring Power of Attorney, which are punishable by imprisonment.
Supportive Attorney
Supportive Attorney is a person that the Principal appoints to provide support or to give effect to some, or all of their own decisions. A Supportive Attorney does not make decisions on behalf of the Principal.
The role of the Supportive Attorney vastly differs from that of an Attorney appointed under a Power of Attorney. A Supportive Attorney is not the decision-maker. The Supportive Attorney provides support for the Principal to make their own decisions (for decisions other than significant financial transactions). Whereas, an Attorney appointed under a Power of Attorney makes decisions and 'stands in the shoes' of the Principal.
The appointment is available to anyone who has capacity to make their own decisions but may need support to make those decisions, such as someone with a disability.
Further Changes
Further changes to the Enduring Power of Attorney laws were made in 2017. These changes will apply from 1 May 2017. Some of the changes are as follows:
a Principal can allow an Attorney to ‘do anything’ or can specify that an Attorney will only have powers or personal, financial and/or particular matters.
you can appoint more than one Alternative Attorney for any Attorney you appoint.
you can cancel an Enduring Power of Attorney and an Attorney can resign from his/her appointment.
Upcoming Changes
Further proposed changes are also planned for 12 March 2018, when the Medical Treatment Planning and Decisions Act 2016 will commence.
This Act will replace the Medical Treatment Act 1988. The proposed changes include making a new or different Enduring Power of Attorney (medical treatment) form, available here.
Last Updated 2 August 2018
This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice, specific to your circumstances. If you need legal advice, please seek advice from a qualified person such as a solicitor.