Are you ready for the Powers of Attorney Legislative Changes?

From 1 September 2015, new Powers of Attorney legislation will commence in Victoria. The legislation clarifies and consolidates Victoria’s powers of attorney laws, create the role of supportive attorney and improve the protections against abuse use of these powers.

A power of attorney is a legal document under which a person (‘principal) who has the capacity to make decisions may appoint another person to make decisions on their behalf.

The Act includes minor changes affective what is currently called a ‘general power of attorney’. Where this type of document is made after 1 September 2015, the new name will become ‘general non-enduring power of attorney’, to reflect that the appointment does not continue (‘endure’) if the principal loses capacity to make decisions.

The Act also consolidates the current enduring power of attorney (financial) and enduring power of guardianship into one enduring power of attorney, encompassing both financial and personal matters.

The new legislation clarifies the powers and obligations under the new enduring power, and creates a new criminal offence punishable by up to five years imprisonment for abuse of this power. The legislation also gives stronger powers of oversight of enduring powers of attorney to the Victorian Civil and Administrative Tribunal (VCAT), and establishes more stringent conditions for witnesses.

The Act also introduces the ‘supportive attorney’, which allows a principal to appoint a person to provide support to make or give effect to some or all of the principal’s decisions. The appointment is designed for use in circumstances where a person has decision-making capacity but needs support to exercise that capacity. Safeguards against abuse of the supportive attorney role, similar to those for enduring powers of attorney, will also be established.

If before 1 September 2015 you have already validly appointed an attorney or enduring guardian under the current laws, the appointment will continue to be effective after the new law commences.
However, effective from 1 September 2015, new forms will need to be used when appointing an attorney under either a general non-enduring power of attorney (for financial matters) or an enduring power of attorney (for financial and/or personal matters). There will also be a form for the new appointment type of a supportive attorney.

State Trustees is actively implementing initiatives to ensure compliance with the legislative changes ahead of the September changes. Our online and hardcopy power of attorney kits will be updated with the new forms and guidance about their use, and replacement power of attorney kits will be issued to all customers who have purchased a State Trustees power of attorney kit online on or after 1 June 2015.

The State Trustees website will also be a key tool in educating the community, alongside communications which will be sent to new and existing power of attorney clients. Most importantly, State Trustees will be able offer advice and assistance to those wishing to appoint a supportive attorney from 1 September 2015.