FAQ – powers of attorney

Here are the answers to the most common questions we are asked about powers of attorney.

Are there different types of power of attorney?

Yes. It’s important to understand the different types of power of attorney, so that you can choose the ones you need to put in place.

A general power of attorney (in Victoria called a ‘general non-enduring power of attorney’) allows you to appoint someone to make decisions about, and enter into, financial and property transactions on your behalf. You can limit the scope of your attorney’s power. But the power will not continue if, as a result of illness or an accident, you cease to have decision making capacity for the matters covered by the power.

By contrast, ‘enduring powers’ may continue after (or, in some cases, may only commence after) you no longer have decision making capacity for the matters covered by the power.

Different jurisdictions have different types of enduring powers (and sometimes given them very different names). In some jurisdictions, such as Victoria, you may make an enduring power of attorney that covers financial matters, or personal matters (including health care), or both. Victoria also has a separate enduring power of attorney (medical treatment): if the person who made the appointment can no longer make their own decisions, the person they appointed can refuse, or consent to, medical treatment on their behalf.

You should check the types of powers of attorney that are available in your jurisdiction, and what they are used for, before making any appointment decisions.

Who should I appoint as my attorney?

A

You can appoint a person who is at least 18 years of age. In most jurisdictions, and for most types of appointment (especially those involving financial responsibilities), the person must also not be bankrupt or insolvent under administration.

In Victoria, your attorney under an enduring power of attorney cannot be your care worker, health provider or accommodation provider, and, if you are giving them powers in relation to financial matters, they must not have been convicted or found guilty of an offence involving dishonesty. You may appoint a trustee company, such as State Trustees, as your attorney for financial matters.

The person you choose should be someone you can trust, and they should have the experience, skills, resources, and time to properly fulfil the requirements of their role. They need to be aware in advance that the role of attorney can be a complicated, time-consuming, and demanding, especially if any family disputes arise.

What decisions can my attorney make?

The powers the person you appoint will have will depend on the type of appointment, and whether you include additional restrictions in the document. (The terminology used below is relevant to Victoria, but similar considerations apply in other Australian jurisdictions. You should always check the terminology and other details relevant to the appointment types in your particular jurisdiction.)

An enduring power of attorney for financial matters enables your attorney to make decisions that relate to your financial or property affairs (including any legal matters relating to those affairs).

This may include decisions relating to:

  • your day-to-day personal finances
  • management of bills
  • management of property
  • completion of tax returns.

An enduring power of attorney for personal matters enables your attorney to make decisions that relate to your care and personal welfare, including healthcare.

This may include decisions relating to:

  • where you live
  • who you live with
  • what education or training you receive
  • whether you go on a holiday and where you go
  • whether you should receive particular health care

If you have an enduring power of attorney for both financial matters and personal matters, your attorney can make decisions that relate to both your financial and personal matters.

An enduring power of attorney (medical treatment) enables your attorney to make decisions about your medical treatment. This can include a decision about whether to refuse a particular medical treatment.

The appointment of supportive attorney (currently only available in Victoria) allows your supportive attorney to help you in your decision making, whilst you still have decision making capacity. Unlike an enduring power of attorney, you are not giving the supportive attorney power to make decisions for you, but they can help you by collecting information for you, communicating your decisions to others, giving effect to the decisions you have made, or a combination of these things.

What types of decision is my attorney not able to make?

There is a range of decisions that you generally cannot authorise an attorney to make on your behalf. These are typically decisions that must be made by you personally, such as:

  • voting in elections
  • making or revoking your will
  • making or revoking a power of attorney
  • consenting to getting married or divorced or
  • making decisions about the care and wellbeing of your children

When can my attorney start making decisions?

For some types of powers of attorney, you can specify when the powers commence.

For example, in Victoria, under an enduring power of attorney, you can nominate whether your attorney is able to use the powers you have given them:

  • immediately
  • when you are unable to make decisions for yourself
  • from a specified time
  • on a specified occasion or
  • in a specified circumstance

With some powers of attorney, such as the enduring power of attorney (medical treatment) in Victoria, the powers given under it cannot commence whilst you still have decision making power in relation to the matters covered by the power.

An attorney must act in accordance with your directions or instructions whilst you still have decision making capacity.

What is capacity?

In general, a person has capacity (or ‘decision making capacity’) if they understand the nature and effect of a particular decision when it is explained to them.

More specifically, having decision making capacity means that you are able to:

  • understand the information relevant to a particular decision and the effect of the decision;
  • retain that information to the extent necessary to make the decision;
  • use or weigh the information as part of the process of making the decision; and
  • communicate the decision in some way.

For a person to have capacity to make a power of attorney, the person must understand the nature and effect of making that particular power of attorney. For example, in relation to an enduring power of attorney, the person must understand (amongst other things) that the power continues even if they no longer have decision making capacity for the matters covered by the power, and that during that time they will not be able to effectively oversee their attorney’s use of the power.

Who can decide whether I have decision making capacity?

You are presumed to have decision making capacity unless there is evidence to the contrary. In some cases, there may be obvious evidence to the contrary: for example, if you have had a serious accident and are in a coma.

But often the position is much less clear cut.

Sometimes an illness or disability may mean you are unable to understand information given to you in a particular way, but you may be able to understand it if it given to you in a way that is more appropriate to your circumstances. Sometimes you may have decision making capacity for some things and not others. You may also be able to make decisions if you are given appropriate practical support. And even if you cease to have decision making capacity, that situation may be only temporary, and not permanent. It should also never be assumed that you no longer have capacity merely because of your appearance, or merely because you have made a decision that someone else thinks is unwise.

There may be times when it is appropriate to obtain medical evidence to help confirm whether you have decision making capacity for a particular matter or matters. For example, an attorney under an enduring power of attorney may need to obtain evidence from your treating doctor, or even from a specialist medical practitioner, about whether or not you still have capacity for the matters for which the attorney has been given power, as this may affect whether or not the attorney can commence to exercise their powers on your behalf.

In Victoria, in cases where the medical evidence is not clear cut, and a decision needs to be made about whether a power is exercisable under an enduring power of attorney, the matter can be referred to the Victorian Civil and Administrative Tribunal (VCAT).

When does an enduring power of attorney end?

Various events may bring an enduring power of attorney, or the powers of a particular attorney, to an end. For example, the power will no longer be effective when you revoke it, or when you die.

A court or tribunal within each jurisdiction (in Victoria, the Supreme Court and VCAT) will have power to revoke an enduring power of attorney in some circumstances; for example, to prevent an attorney from abusing their power.

In Victoria, the following apply in relation to enduring powers of attorney:

You may specify in the enduring power of attorney itself when it ends, or when a particular attorney’s powers end. The attorney’s power will also be revoked if:

  • they die, or no longer have decision making capacity for the matters for which you have given them power
  • they become an insolvent under administration
  • they become your care worker, accommodation provider, or health provider, or
  • in the case of an an attorney for financial matters, they are convicted or found guilty of an offence involving dishonesty.

Your attorney’s power will also end if they resign. However, they can generally only resign if you still have decision making capacity, or if there is another attorney or alternative attorney who can fulfil their role. In other cases, they must apply to VCAT or the Supreme Court for permission to resign.

Why should I choose State Trustees to prepare a power of attorney document for me?

If you are a resident of Victoria needing to make an enduring power of attorney, or an appointment of supportive attorney, it is important that you get information and guidance that are appropriate to your particular situation, needs and objectives.

State Trustees understands power of attorney law. Our expert staff can guide you through the process and options by giving independent and impartial advice, and by asking the right questions, including some you may not have considered, so that you can make the best possible decisions. We are a reliable and prudent voice at an emotional time.

State Trustees has permanent offices in Footscray, Dandenong, and Bendigo, and also services clients in the Melbourne CBD, Glen Waverley and Geelong. We can also come to you in other areas in Victoria.

What happens if I don't make an enduring power of attorney?

By putting appropriate enduring powers of attorney in place, you can control now who is able to make decisions on your behalf in the future, when you no longer have decision making capacity. Without enduring powers of attorney, your wishes as to who should act for you may not be known or respected. It may lead to conflicts among family and friends. It may also mean there are delays in having important decisions made at the time when they are most needed.

When should I seek professional advice for preparing a enduring power of attorney document?

A well-written enduring power of attorney gives you peace of mind.

You should seek professional advice if:

  • you have complex circumstances or needs, such as a complex family situation
  • you have need to make specific medical or financial arrangements
  • it is possible that your choice of attorney may be challenged
  • you’re concerned about your capacity to appoint an attorney.

Where should I store my power of attorney documents?

You should store your power of attorney documents in a secure place and let your family and intended attorney know where they can be found.

For Victorian residents, the Victorian Will Bank offers safe and secure storage for your will, and any power of attorney documents you have made.