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 on the Victorian Legislation website (External link). 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.
Changes to the Powers of Attorney Act and Regulations on 1 May 2017
Powers of Attorney Amendment Act 2016
The Powers of Attorney Amendment Act 2016 (the Amendment Act) commenced on 1 May 2017. The Amendment Act resolves a range of urgent issues identified by key stakeholders with the operation of the Powers of Attorney Act 2014 (the Act), which commenced on 1 September 2015.
The Amendment Act amends the Act to:
- provide that a principal can authorise an attorney to ‘do anything’ or to exercise powers only for personal, financial and/or specified matters under an enduring power of attorney (EPOA)
- provide that more than one alternative attorney or alternative supportive attorney can be appointed for each attorney or supportive attorney respectively, and an alternative attorney or alternative supportive attorney can be appointed for more than one attorney or supportive attorney respectively
- create more consistency by providing that an old EPOA made under the Instruments Act 1958, an old enduring power of guardianship (EPOG) made under the Guardianship and Administration Act 1986 and a new EPOA made under the Act will be revoked by the making of a new EPOA, unless the principal specifies otherwise in the new EPOA, and
- make minor and technical amendments.
Powers of Attorney Amendment Regulations 2017
The Amendment Regulations streamlines the forms and makes the following specific amendments to the:
- EPOA appointment to provide that:
- a principal can authorise an attorney to either ‘do anything’ or to exercise powers only for personal, financial and/or specified matters
- a principal can appoint more than one alternative attorney for each attorney appointed or an alternative attorney for more than one attorney appointed and specify how they must act
- a principal can specify those EPOAs and EPOGs or parts thereof, that are not being revoked by the making of a new EPOA
- Supportive attorney appointment to provide that:
- a principal can appoint more than one alternative supportive attorney for each supportive attorney appointed or an alternative supportive attorney for more than one supportive attorney appointed
- Revocation by the principal of: EPOA or appointment of attorney/alternative attorney or supportive attorney appointment or appointment of supportive attorney/alternative supportive attorney to provide that:
- a principal can revoke the appointment of: an alternative attorney or alternative supportive attorney for one or more attorney(s) or supportive attorney(s) respectively
- Resignation by: an attorney or alternative attorney or supportive attorney or alternative supportive attorney to provide that:
- an alternative attorney or supportive attorney can resign from their appointment for one or more attorney(s) or supportive attorney(s) respectively.
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.
A copy of the Act can be found on the Victorian Legislation website (External link). A copy of the Act, as amended by the Powers of Attorney Amendment Act 2016, will be available from 1 May 2017.
Further information about powers of attorney can be accessed from the Office of the Public Advocate (OPA)'s website (External link) or by phone 1300 309 337.
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