There is also a supportive attorney, another type of power of attorney. Supportive attorney appointments are a way a person can be supported to make decisions. Supportive attorney appointments are designed to promote the right of people with disability to make their own decisions about things that affect them.
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 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.
There are general power of attorney and enduring powers of attoreny and medical enduring powers of attorney.
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 specific and fixed 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.
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 enduring powers of attorney?
Each of the enduring powers of attorney has its own purpose and gives the appointed person specific powers.
An enduring power of attorney gives the appointed person authority to make financial and personal decisions on your behalf. The attorney’s decisions have the same legal standing as they would if the person who appointed him/her made them (Powers of Attorney Act 2014). This means it is very important to choose an attorney very carefully.
When you decide to appoint someone, you can give that appointed person authority to make financial and related legal, including property, 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 .
On the other hand you can appoint someone to only make decisions about your personal and lifestyle issues.
Or you may choose to appoint someone to cover all these aspects-financial, and personal- of your life.
A Medical Enduring Power of Attorney gives the appointed person (the medical agent) authority to make medical decisions on your behalf. Doctors, dentists cannot treat you without your consent or the treatment is an emergency or very minor. If the circumstance arises where you are not able to understand, the medical agent can act on your behalf. This power only comes into play if and when you are are unable to make decisions about your medical treatment.
To make someone your medical enduring power of attorney you must be over the age of 18 and have the decision making capacity to do so.
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. A medical enduring power of attorney 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.
Supportive attorney appointments are designed to promote the rights of people with disability. However, there can be many reasons why a person may want support to make decisions. While people can be supported informally, making a supportive attorney appointment can be helpful as organisations must recognise the authority of the person in the support role. Check out the booklet on supported attorneys from the Office of the Public Advocate
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. Guardianship
Anyone can make an application for guardianship to VCAT if they are concerned that a person is not making reasonable decisions due to disability and there is a need for guardianship.
Guardianship may be needed if a person is unable to make reasonable decisions about their lifestyle and other personal affairs. A guardian may be appointed by the Victorian Civil and Administrative Tribunal (VCAT).
The guardian’s role depends on the type of order made by VCAT. A limited order covers areas such as health care, accommodation, employment, access to people. A plenary order includes lifestyle and personal decisions and also medical decisions but excludes financial decisions.
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 makes guardianship and administrative orders under the Guardianship and Administration Act 1986.
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