Powers of Attorney Legislative Changes – Victoria

On 1 September 2015, new Powers of Attorney legislation commenced in Victoria. The legislation clarified and consolidated Victoria’s powers of attorney laws, created the role of a supportive attorney and improved 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 included minor changes affecting what was previously 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 consolidated 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 clarified the powers and obligations under the new enduring power, and created a new criminal offence punishable by up to five years imprisonment for abuse of this power. The legislation also gave stronger oversight power of enduring powers of attorney to the Victorian Civil and Administrative Tribunal (VCAT), and established more stringent conditions for witnesses.

The Act also introduced 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, were also established.

Information for customers

If before 1 September 2015 you have already validly appointed an attorney or enduring guardian under the previous laws, the appointment will continue to be effective after the new law commences.

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 has implemented initiatives to ensure compliance with the legislative changes. Our online and hardcopy power of attorney kits have been updated with the new forms and guidance about their use. 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 is also a key tool in educating the community. Most importantly, State Trustees is able to offer advice and assistance to those wishing to appoint a supportive attorney.