A power of Attorney is granted by a principal, who appoints an Attorney to act in his or her place.
A Financial Power of Attorney can be useful for financial and property transactions, when the principal is unavailable eg. overseas or incapacitated due to ill health or unexpected injury.
Lifestyle forms of Power of Attorney allow Attorneys to make medical or lifestyle decisions (including residence arrangements and visitation) on behalf of an incapable person.
Financial and Lifestyle decisions
The Power of Attorney Act 2014 (Vic) provides for both non-enduring (formerly called “general”) and enduring powers of attorney in statutory form for financial, legal, personal and lifestyle matters. The old enduring power of attorney (financial) has been consolidated with the enduring power of guardianship which could be made under the Guardianship and Administration Act 1986 (Vic). These powers are subject to the jurisdiction of the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT). General powers of attorney are also available under common law, but they cannot survive their principal’s personal incapacity.
Enduring powers of attorney
An enduring power of attorney allows the principal to appoint an attorney with the power to make financial, legal, personal and lifestyle decisions on their behalf even when they lose capacity. The principal may limit the power to a period of time, circumstance or occasion when the power of attorney will operate. eg. for a period of overseas travel, or in case of incapacity, or between specifically stated dates.
Any adult person who has decision-making capacity may appoint an attorney. Decision-making capacity requires an understanding and retention of information and the ability to reason and communicate a decision. The legislation acknowledges that incapacity may only be temporary or relate to some matters.
A principal may appoint one or more financial attorneys to make decisions on their behalf, either to act jointly (and unanimously), jointly and severally, enabling any attorney to act individually or as a majority. Subject to any special conditions, an attorney is empowered to:
Purchase and sell land;
Make decisions about where the principal lives;
Where the principal can work;
Commence or discontinue legal proceedings; and
Purchase and dispose of assets.
An attorney cannot:
Make or revoke a will on behalf of the principal;
Exercise any trust powers the principal has;
Act illegally on the principal’s behalf;
Delegate power to a third party;
Apply for probate;
Swear an affidavit in the name of the principal;
Act in the principal’s name where the act requires the principal’s personal skill or discretion;
Make decisions about the principal’s children; or
Consent to a marriage or dissolution of marriage.
Non-enduring power of attorney
A statutory general non-enduring power of attorney allows an attorney to do on behalf of the principal anything which the principal can lawfully do. The principal may appoint the attorney to make legal and financial decisions normally for a specific purpose eg. to sell my house at a certain price, but with unlimited broad powers. The power can commence at a later date.
Because of the breadth of this form of power, the enduring power of attorney will often be more appropriate.
Powers of attorney cease to have effect when the principal dies, revokes the power, becomes insolvent or in the case of a general power, becomes incapable.
The Act now allows a person to appoint one or more supportive attorneys to help them make and give effect to decisions. If more than one supportive attorney is appointed, the principal can specify what matters each attorney can act on separately.
A supportive attorney can take any reasonable action to do anything to give effect to a decision except where the decision is a significant financial transaction e.g. decisions relating to shares, real property, substantial personal property or securities.
A supportive attorney cannot assist to help the principal in an illegal activity and cannot coerce or unduly influence the principal.
Enduring power of attorney (medical treatment)
An enduring power of attorney (medical treatment), made under the Medical Treatment Act 1988 (Vic) ensures legal authority for the person the donor wants to make medical decisions on their behalf, when they are unable to do so.
A medical power of attorney doesn’t take effect until the donor is unable to personally make medical treatment decisions.
A medical power of attorney allows the attorney to agree to or to refuse medical treatment for the donor, if the treatment would cause unreasonable distress to the principal or if the donor (were they competent and able to give serious consideration to their health and wellbeing) would consider that the treatment would be unwarranted. When the refusal is given by an attorney, this must be done through a refusal of treatment certificate.
An enduring power of attorney (medical treatment) may be challenged in VCAT on the application of the public advocate; any other person who VCAT determines has an interest and/or the agent or alternate agent.
Please contact Daniel Kelliher or Stefan Manche for advice relating to your particular circumstances or if you require powers of attorney tailored to your needs.
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