1. What is an enduring power of attorney (financial)?
This section relates to enduring powers of attorney made under the Instruments Act 1958. It is automatically revoked (unless the principal specifies otherwise) when the principal makes a new enduring power of attorney under the Powers of Attorney Act 2014.
The following relates to existing powers of attorney under the 1958 Act where a person still has documents made before the new act of 2014:
An enduring power of attorney (financial) is a legal document that authorised another person to make financial and legal decisions on your behalf.
The enduring power of attorney (financial) could take effect immediately, on a specified day or occasion, or if and when you became mentally incapacitated.
2. What power did it give?
The powers given to your attorney could be as extensive or as restrictive as you chose. For example, they might be responsible for all your financial and legal transactions, or they might be responsible for only some, such as writing cheques and paying bills.
The enduring power of attorney (financial) could be used for temporary circumstances, such as a stay in hospital or a trip overseas. However, because it was enduring, it would also automatically take effect if and when you become permanently incapacitated.
You could specify different powers for different circumstances. For example, you could specify only restricted powers for temporary circumstances, such as a trip overseas. However, you were able to specify more extensive powers that would take effect if and when you become permanently incapacitated.
You could specify the principles and philosophy that underpinned the way your financial affairs were managed.
3. What were the legal formalities?
For an enduring power of attorney (financial) to be valid, both the donor and the attorney had to be
- at least 18 years of age
- have sufficient mental capacity to fully understand the nature and meaning of the enduring power of attorney (financial) documents
- signed by 2 witnesses
4. What were the financial attorney’s additional legal obligations?
Financial attorneys were legally obliged to
- act in your best interests at all times
- to keep their property separate from yours, except when the property is jointly owned
- to keep accurate records of all dealings and transactions
- to follow any specific instructions set out in the power of attorney document
- to maintain confidentiality.
Records obtained and created by the attorney must be available for inspection by the Victorian Civil and Administration Tribunal (VCAT) when required. VCAT can make orders to protect your property if there are any concerns about misuse.
Documents signed on your behalf, must have stated that they signed under the authority of an enduring power of attorney and include the date on which the power of attorney was created.
If the power of attorney operated only in specific circumstances, your attorney needed proof that the circumstances occurred. For example, your attorney needed to provide your bank with a letter from your doctor stating that were no longer capable of managing your affairs. However, privacy laws mean that you must have given your doctor permission to write such a letter beforehand. Clearly, this may not have been possible if you were incapacitated.
5. Can I change my financial attorney?
You can revoke (cancel) your financial attorney by completing a new enduring power of attorney (financial) form, and stating that you are revoking (cancelling) all previous powers of financial attorney. The form must be signed and witnessed in the same way as the original document. You do not need the same witnesses.
Destroy the revoked document, along with any copies, and inform the previous attorney and anyone who holds copies of the document of your decision. Ask them to return their copy, and destroy that too.
If you want to formalise the revocation, complete a revocation of enduring power of attorney form. Give your previous attorney a copy of the form. Also, give a copy of the form to any other people or organisations, such as your accountant and bank, who may have seen and be relying on the previous form.
Make sure you tell your financial attorney that their powers have been withdrawn, because their actions continue to be binding if they have not been informed of the change.
The same process and requirements apply if you want to change your financial attorney’s instructions contained in the document.
You can revoke an enduring power of attorney (financial) appointment only if you are mentally capable. If you are not mentally capable, only the Victorian Civil and Administrative Tribunal can revoke your attorney’s powers.
9. From whom can we obtain advice?
The Office of the Public Advocate (1300 309 337) provides information and advice about all guardianship and power of attorney matters.
10. From where can I obtain a form?
You can obtain paper copies of the current enduring power of attorney form law stationers, lawyers and the Office of the Public Advocate. Alternatively, you can download a form using this link. www.publicadvocate.vic.gov.au
Next Section: Enduring Power of Attorney (Medical Treatment)