Introduction: Understanding powers of attorney

 

As explained in Understanding guardianship, when an adult becomes unable to make reasonable judgments because of a disability, the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) has powers to select and appoint guardians and administrators if there is a need to do so. (See alsoCapacity and consent” in Understanding disability and the law.)

Generally, this will not be required if an enduring power of attorney already exists. This means that the cost and inconvenience of making an application, a hearing, and ongoing periodic reviews and fees can be avoided. Therefore, it is a good idea to consider providing for some or all of the enduring powers described here, in case of any sudden or gradual onset of a disabling condition.

On 1 September 2015 the Powers of Attorney Act 2014 (Vic) (“POA Act”) came into operation.

This Act creates a new enduring power of attorney that replaces the financial enduring power of attorney (under the Instruments Act 1958 (Vic)) and the enduring power of guardianship (made under the Guardianship and Administration Act 1986 (Vic)). At the time of writing (June 2015), the Victorian government has not released a new prescribed form. It is expected that there will be a form hosted on the website of the Office of the Public Advocate (OPA). For more information, contact OPA’s advice service.

There are provisions in the POA Act that ensure that enduring powers of attorney (financial) and enduring powers of guardianship made under previous laws remain valid.

The POA Act creates a new power of attorney called a “supportive attorney”. This is not an enduring power.

The enduring power of attorney (medical treatment) is not affected by the new law.

The general (non-enduring) power of attorney is no longer found in the Instruments Act 1958 (Vic) but in the POA Act. It is discussed briefly in General (non-enduring) power of attorney.

At the time of writing, OPA is developing a new edition of the “Take Control” fact sheets and other information to assist the public regarding these laws.

The OPA has an interactive program on its website called “You decide who decides”. It can help you work out what enduring powers of attorney you might need, and whom you should appoint.

Note that the general (non-enduring) power of attorney is included here only for comparison with the other powers. It is not relevant to the area of disability and guardianship, as it lapses if you become incapable of making reasonable decisions.