Page Contents
1. What are the different types of powers of attorney?
2. What is the difference between a general power of attorney and an enduring
power of attorney?
3. What are the three enduring powers of attorney?
4. Which powers do I need?
5. Who can make a power of attorney?
6. What is legal capacity?
7. What if I am very ill and want to appoint
an attorney?
8. Do I need a lawyer?
9. What is VCAT and what does it do?
10. What happens if I don’t have an
enduring power of attorney?
A power of attorney is a document that authorises another person to make decisions on your behalf. This can assist you when you are temporarily or permanently unable to manage your own affairs.
It is worthwhile thinking about appointing an attorney now while you are still of sound mind and able to do so, particularly if you have been diagnosed with a serious illness or are about to have major surgery. Appointing an attorney enables you to have someone you trust manage your affairs and make decisions on your behalf should you be unable to do so.
Choose your attorney(s) carefully. Their job is to make decisions that are right for you and in your best interests, so take care to choose someone who will understand your wishes and follow them whenever possible.
1. What are the different types of powers of attorney?
The four powers of attorney are designed to cover different situations and different types of decisions: temporary and permanent situations, and personal, lifestyle, financial, legal and medical decisions. {each to have links to explanatory notes}
- General power of attorney
- Enduring power of guardianship
- Enduring power of attorney (financial)
- Enduring power of attorney (medical)
2. What is the difference between a general power of attorney and an enduring power of attorney?
A general power of attorney is for use in short-term and long-term situations for legal and financial matters only. It is typically used when you travel overseas and need someone to pay your bills and attend to your legal and financial affairs while you are away. It can remain valid for your lifetime, but it automatically becomes invalid if you become mentally incapacitated.
In contrast, the three enduring powers of attorney are designed to continue through mental incapacity, that is, if and when you are unable to understand and make decisions for yourself. They are called enduring because they last until your death unless you revoke them or they are terminated by the Victorian Civil and Administrative Tribunal.
3. What are the three enduring powers of attorney?
Each of the three enduring powers of attorney and guardianship has its own purpose and gives the appointed person specific powers.
An enduring power of guardianship gives the appointed person authority to make personal and lifestyle decisions on your behalf. It takes effect from the time you become mentally incapacitated (Guardianship and Administration Act 1986).
An enduring power of attorney (financial) gives the appointed person authority to make financial and legal decisions on your behalf. It takes effect from whatever time you nominate: immediately, on a specific date, or if you so specify, when you become mentally incapacitated (Instruments Act 1958).
An enduring power of attorney (medical) gives the appointed person authority to make medical decisions on your behalf. It takes effect from the time you become mentally incapacitated (Medical Treatment Act 1988).
4. Which powers do I need?
The powers you need will depend on your wishes, and your personal, financial and family circumstances. Provided the legal requirements are met, you can make whichever powers you wish, and you can appoint whoever you wish to take on those powers. For example, you may choose to make only an enduring medical power of attorney, or you may choose to make all three enduring powers of guardianship and attorney. Similarly, you may choose to appoint only one person for all the powers you make, or you may choose different people for each of the powers you make.
In deciding which powers you want to make, take note of the type of decision covered by each document. For example, an enduring power of guardianship covers only personal and lifestyle decisions; it does not cover legal and financial decisions. An enduring power of attorney (medical) covers only medical decisions; it does not cover personal, lifestyle, financial or legal decisions. An enduring power of attorney (financial) covers only legal and financial decisions although these can impact on personal and lifestyle decisions, for example, when a house is sold or leased to live in, or in the choice of an aged care facility.
However, note that there is potential overlap between an enduring power of guardianship and an enduring power of attorney (medical) in relation to medical decisions, because both have the power to make medical decisions. However, in practice, a guardian can make medical decisions only if there is no medical attorney. If a medical attorney has been appointed, their decisions take precedence over those of the guardian.
5. Who can make a power of attorney?
Anyone can make a power of attorney, but, for the power to be valid, both the person making the power of attorney and the person accepting the appointment must
- be at least 18 years of age
- have sufficient legal capacity to fully understand the nature and meaning of the documents.
6. What is legal capacity?
To have sufficient legal capacity, a person must have the mental capacity to
- understand the nature and meaning of legal documents
- understand the responsibilities and consequences of making a power of guardianship or attorney appointment
- understand the responsibilities and consequences of accepting a power of guardianship or attorney appointment.
7. What if I am very ill and want to appoint an attorney?
If you are very ill and you want to appoint or change an attorney but there is concern that your legal capacity could be questioned, ask your doctor to prepare a medical report stating that you
- are not unduly confused by your illness or medication
- have sufficient legal capacity to appoint an attorney.
If you don’t obtain medical evidence of legal capacity, it may be easier for someone to challenge the appointment. While evidence of legal capacity will not necessarily prevent someone challenging the appointment, such evidence will at least ensure that the appointment is not challenged on the grounds of legal capacity.
8. Do I need a lawyer?
You don’t need a lawyer to make a power of attorney, but you must make sure all the legal requirements are met. For example, the correct form must be used, and the form must be witnessed properly. You should also clearly state the powers you are giving the person, and if you wish to do so, how they are to use those powers, including any conditions and limitations on their use.
9. What is VCAT and what does it do?
The Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) is the body responsible for powers of attorney in Victoria. Its responsibilities include
- deciding whether people have the legal capacity to manage their affairs
- appointing guardians and administrators for people who are unable to make decisions
- ruling on disputes involving guardians, attorneys and agents
- ordering audits of people’s finances and affairs if there is good reason to do so
- revoking or suspending the powers of guardians, attorneys and agents if there is good reason to do so
- advising guardians, attorneys and agents, and providing them with direction and opinion about their role and the scope and powers of their appointment.
VCAT holds its responsibilities alongside the Supreme Court. However, it is less formal than the Supreme Court, and it holds hearings around the state.
10. What happens if I don’t have an enduring power of attorney?
If you become incapacitated and you don’t have an enduring power of guardianship or attorney, the Victorian Civil Administrative Tribunal (VCAT) can appoint someone from the Guardianship List who is qualified to take over your affairs if there is good reason to do so.
VCAT will appoint a guardian to make your lifestyle decisions, and an administrator to manage your financial affairs. However, because the appointed person may not be aware of your wishes, their decisions may or may not be in accordance with your preferred wishes.
Next Section: General Power of Attorney
