As explained in Guardianship and medical treatment, 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. (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 a VCAT 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 in this chapter, in case of any sudden or gradual onset of a disabling condition.
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.
On 1 September 2015 the Powers of Attorney Act 2014 (Vic) (“POA Act”) came into operation.
The POA Act created a new enduring power of attorney that replaced the financial enduring power of attorney (made under the Instruments Act 1958 (Vic)) and the enduring power of guardianship (made under the Guardianship and Administration Act 1986 (Vic)). Also, the general (non-enduring) power of attorney is no longer found in the Instruments Act 1958 (Vic) but in the POA Act.
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 Medical Treatment Planning and Decisions Act 2016 (Vic) (“MTPD Act”) commenced on 12 March 2018. This affects the powers of personal attorneys.
To appoint a person to make decisions about medical treatment and medical research procedures when a person has lost their decision-making capacity, it is necessary to appoint a “medical treatment decision-maker” (see “Medical treatment decision-makers” in Guardianship and medical treatment).
The MTPD Act allows the appointment of a support person (see “Support people” in Guardianship and medical treatment).
People who are under 18 or who are insolvent cannot be attorneys. Some people cannot be an attorney for financial matters:
• a person found guilty of a dishonesty offence (but section 28 (1)(c)(ii) has a work-around for this);
• a person who is a care worker, a health provider or an accommodation provider for the principal.