A power of attorney is a legal document under which a person (referred to as the ‘principal’) who has decision-making capacity may appoint another person (referred to as an ‘attorney’) to make decisions on his/her behalf.
The Powers of Attorney Act 2014 (the Act) commenced on 1 September 2015. A copy of the Act can be found at legislation.vic.gov.au. The purposes of the Act are to:
- clarify and consolidate Victoria’s enduring powers of attorney laws
- create the role of supportive attorney
- improve the protections against abuse of enduring powers of attorney.
Powers of attorney made under previous legislation will remain valid under the new Act. The Act does not affect enduring powers of attorney (medical treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.
Clarify and consolidate Victoria's enduring powers of attorney
The Act includes only minor amendments to general powers of attorney, which will be called general non-enduring powers of attorney.
The Act consolidates the current enduring power of attorney (financial) and power of guardianship into one enduring power of attorney. The enduring power of attorney will allow people to arrange management of financial and personal matters.
Improve protections against abuse of powers of attorney
The Act improves protections against abuse of enduring powers of attorney, as follows:
- Decision-making capacity: The Act introduces a new definition of decision-making capacity and provides guidance about how it should be assessed to protect a person’s right to make their own decisions where possible. The Act makes a clear statement that a person is presumed to have decision-making capacity unless there is evidence to the contrary.
- Principles to guide decision-making: Decision-makers acting for a person who lacks decision-making capacity under an enduring power of attorney must do so in a way that is least restrictive of that person’s ability to decide. They must ensure the person is given practicable and appropriate support to enable them to participate in decisions affecting them as far as possible. The Act requires an attorney to: give effect to the principal’s wishes; encourage the principal to participate in decision-making; and promote the principal’s social and personal wellbeing.
- More stringent execution requirements: The Act introduces more stringent requirements for the making and revoking of enduring powers of attorney.
- Duties of enduring attorneys: The Act clearly sets out duties of enduring attorneys, including to act honestly, diligently and in good faith, and to exercise reasonable skill and care.
- Prohibition on conflict transactions: The Act introduces new provisions prohibiting conflict of interest transactions, unless authorised or ratified by the principal or VCAT.
- Gifts: The Act regulates an enduring attorney’s ability to give gifts from the principal’s property.
- VCAT powers: The Act provides VCAT with additional powers, including the power to order compensation for any loss caused by an enduring attorney contravening the Act and to provide advice to multiple attorneys on resolution of disputes.
- Creating new indictable offences: The Act creates new offences for dishonestly obtaining or using an enduring power of attorney, which are punishable by up to five years' imprisonment.
Create supportive attorney role
The Act also introduces the supportive attorney appointment, which allows a principal to appoint a person (‘a supportive attorney’) to provide support to make or give effect to some or all of the principal’s decisions. The introduction of supportive attorney appointments is a response to the Victorian Law Reform Commission’s Guardianship Report, which recommended legislative implementation of supported decision-making for people with a disability affecting decision making. The appointment is available to anyone who has decision-making capacity but needs support to exercise that capacity.
Whereas in the general or enduring powers of attorney listed above the attorney makes decisions on behalf of the principal, a supportive attorney will not make decisions on behalf of the principal. A decision made with the support of a supportive attorney or communicated by or with the support of a supportive attorney will be a decision of the principal.
A principal may authorise a supportive attorney to access, collect or obtain information; to communicate, or assist the principal to communicate supported decisions; or to do anything that is reasonably necessary to give effect to supported decisions (other than decisions about significant financial transactions).
This scheme will not detract from informal relationships where those are sufficient. Many day-to-day decisions will continue to be made with and without informal assistance.
Information about the new legislation regarding powers of attorney can be accessed from the Office of the Public Advocate (OPA)'s website or by phone 1300 309 337.
As noted above, a copy of the new Act can be found at legislation.vic.gov.au.
Below are the prescribed forms for the new Act which commenced on 1 September 2015.
These forms set out the minimum requirements for what to include in a form to make, revoke (cancel), resign or provide notification (where required) in relation to enduring powers of attorney and supportive attorney appointments under the new Act. You can adapt these forms, but need to retain the minimum requirements set out in these forms.
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|Author:||Department of Justice and Regulation|
|Publisher:||Department of Justice and Regulation|
|Date of Publication:||2015|
|Copyright:||State of Victoria, 2015.|
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