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) can select and appoint guardians and administrators if there is a need to do so (for VCAT’s contact details, see “Contacts”), (See also “Capacity and consent” in Understanding disability and the law.)
Generally, this is not 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 created a new enduring power of attorney that replaced 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)). The new form can be found on the website of the Office of the Public Advocate (OPA) (www.publicadvocate.vic.gov.au).
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 created 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. However, from 12 March 2018, when the Medical Treatment Planning and Decisions Act 2016 (Vic) (“MTPD Act”) commences, it will no longer be possible to appoint a medical attorney.
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 below.
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.