What is a power of attorney?
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 and personal 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.
Types of powers of attorney
In Victoria there are three main types of powers of attorney:
- general non-enduring power of attorney
- enduring power of attorney (financial and/or personal)
- supportive 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 nature of the document they are signing
- what powers are being granted to the attorney
- what powers the principal is retaining
- the options to cancel or change their attorney or terms of the appointment.
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:
- agree to be the attorney
- have capacity.
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.
General non-enduring power of 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:
- sell your house for a specific figure
- operate your bank account
- give someone control of all your business affairs, or
- act on your behalf while you are overseas or in hospital.
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 Your lawyer can advise you how the power can be withdrawn.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.
Enduring power of attorney
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 care, accommodation and lifestyle matters. 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:
- the powers the principal gives to the attorney, including any limitations or conditions the principal has put on these powers
- when the attorney can exercise these powers
- that while the principal has capacity, the principal can revoke or vary the power of attorney
- that the power will still operate if the principal loses the ability to make decisions
- that once the principal has lost capacity, it is unlikely they will be able to oversee their attorney’s work and decision making.
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. You may appoint your attorneys or alternate atttorneys:
- jointly — they must make decisions together (and all sign any document)
- jointly and severally — they can make decisions together or independently (for example, either all sign any document, or one attorney alone can sign any document)
- severally — they can make decisions independently (and one attorney alone can sign any document).
A person appointed as a financial attorney must not be insolvent and must disclose to the principal any convictions of an offence involving dishonesty.
Appointment of Medical Treatment Decision Maker – Victoria
You can choose who makes medical treatment decisions for you if you are ever unable to make these types of decisions, due to injury or illness.
The person with legal authority to make medical treatment decisions for you is known as your medical treatment decision maker. Your medical treatment decision maker can only make decisions about your treatment when you do not have decision making capacity to make the decision.
Medical treatment decision maker list
The first person in the list below who is reasonably available, and willing and able, to make the decision will be your medical treatment decision maker:
- your appointed medical treatment decision maker
- a guardian appointed by VCAT to make decisions about your medical treatment
- the first of the following people who is in a close and continuing relationship with you:
- your spouse or domestic partner
- your primary carer (not a paid service provider)
- your adult child
- your parent
- your adult sibling.
Where you have two or more relatives who are first on this list, it is the eldest.
You can choose who your medical treatment decision maker is by appointing someone to that role. Examples of the things they can make decisions about include treatment for an injury, an operation, dental treatment, and treatment for mental illness.
In Victoria, if you do not have a medical treatment decision maker, and do not have capacity to make a decision, the Public Advocate has authority to make a significant medical treatment decision for you (unless it is an emergency, or unless you have completed a relevant instructional directive).