Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (2006) says:
States parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
The “supportive attorney” appointment is designed to support a principal to obtain the support they need to make decisions for themselves. The principal may give their supportive attorney three sorts of powers:
• to support the principal to obtain information (s 87 POA Act);
• to support the principal to communicate (s 88);
• to support the principal to give effect to their decisions (s 89).
For example, a principal would like to go on holidays overseas, but finds it difficult to obtain information about getting a passport, arranging visas, finding out where to stay. The arranging of a passport requires the obtaining of documents, such as proof of identity, the disclosing of information, the paying of fees. The principal may need support to do these things and may appoint a supportive attorney to help.
A core legal concept is that the decisions are those of the principal, not the supportive attorney (s 86).
The person appointing a supportive attorney must have the capacity to decide to do so and the capacity to make decisions for which the support is sought (ss 85–86). (See section 4 for the meaning of decision-making capacity.)
A supportive attorney can be appointed for financial or personal matters. Since the commencement of the MTPD Act, a supportive attorney cannot be appointed in relation to medical treatment and medical research procedures. The MTPD Act enables the appointment of a support person to perform the role in relation to these matters.
There are limits on who can be appointed. The supportive attorney must be over 18 years old, not be insolvent, not having been found guilty of a dishonesty offence (see s 91). There can be more than one supportive attorney appointed and, if so, they can act separately (s 92). There is scope for alternative supportive attorneys (s 93).
The duties of the supportive attorney are set out in section 90. In essence, these duties emphasise the importance of the supportive attorney’s integrity. The authority does not extend to supporting the principal to make decisions about significant financial transactions (which are defined) (s 89).
The form for appointing a supportive attorney can be downloaded from the OPA’s website (www.publicadvocate.vic.gov.au).
The appointment may be revoked by the principal at any time. It may also be revoked should the principal cease to have the capacity to make decisions (using our example, to decide to take a holiday overseas). The power is revoked by the principal’s death, the attorney’s death, the attorney becoming insolvent or becoming a care worker or provider for the principal, or the attorney is convicted of a dishonesty offence. The supportive attorney can resign (see pt 7 div 5).
VCAT also has a role similar to that set out above for enduring powers of attorney to oversee the validity and operation of the power of supportive attorney.