Power of Attorney in Victoria

What a Power of Attorney and a Medical Treatment Decision Maker are

In Victoria, a Power of Attorney is a legal document that enables a person, referred to as the 'principal', to appoint another person, known as the 'attorney', to act on their behalf. This appointment could pertain to personal matters, financial matters, or both. In the context of estate planning, a Power of Attorney plays a vital role.

The attorney under a Power of Attorney can help manage the principal's financial affairs, which might encompass assets that will eventually become part of the estate. This management can range from handling transactions and managing investments to paying bills and other financial responsibilities. However, it's critical to understand that an attorney cannot change a principal's will.

On the other hand, the Appointment of a Medical Treatment Decision Maker is a separate legal document that appoints someone to make medical decisions on your behalf in the event that you are no longer able to make your own medical decisions.

Enduring vs. general Power of Attorney

There are two different types of Power of Attorney in Victoria: enduring and general. A General Power of Attorney grants another person the authority to handle your financial affairs for a specific period or in particular circumstances, and it becomes invalid if you lose mental capacity. The key characteristic of this type is its temporary nature.

In contrast, an Enduring Power of Attorney continues even if you become unable to make decisions due to the loss of mental capacity and can apply to financial matters and personal matters. Given the lasting impact and potential complexities of an Enduring Power of Attorney, it's highly advisable to seek professional legal advice before appointing one.

Appointing a Power of Attorney

The process of appointing an attorney under a Power of Attorney is a significant legal measure that requires preliminary steps, such as:

• Identifying your attorney
• Understanding the different types of Power of Attorney
• Preparing the Power of Attorney document
• Signing and witnessing the document
• Storing the document safely

At Goldsmiths Lawyers, our detailed process includes the following steps:

1. Understanding our client's situation and circumstances

We start our process by meeting our clients and obtaining an understanding of their financial situation and personal circumstances.

2. Advisement

We then advise of the nature and effect of the Power of Attorney document and discuss their wishes for who they would like to appoint.

3. Discuss decision-making capacity

Next, we discuss capacity and make any necessary enquiries to determine whether capacity is an issue.

4. Draft the Power of Attorney and/or Medical Treatment Decision Maker

In accordance with the client's wishes, we then draft the Power of Attorney and/or Medical Treatment Decision Maker document and advise them of the effect of the document and make any changes as instructed.

5. Execute the document

Finally, we execute the document.

Who can appoint a Power of Attorney

In Victoria, the ability to appoint a Power of Attorney is not universal but is governed by specific legal requirements. The following individuals are able to appoint a Power of Attorney:

Adults

Anyone aged 18 years or older with decision-making capacity in relation to making the Power of Attorney can make a Power of Attorney.

Individuals with decision-making capacity

The person appointing a Power of Attorney must have the mental capacity to make a decision, which means having the ability to understand the information relevant to the decision and the effect of the decision, retain information to the extent necessary to make the decision, use or weigh that information as part of the decision-making process and communicate the decision, views and needs.

Trusts or corporations

In certain situations, trusts or corporations can also appoint a Power of Attorney to manage specific financial matters on behalf of the entity.

Who you can appoint as your Power of Attorney

When choosing who to appoint as your Power of Attorney, there are specific legal requirements to consider. The person you appoint:

• Must be at least 18 years old.
• Must not be insolvent under administration; and
• If being appointed to be an attorney for financial matters, must not have been convicted or found guilty of an offence involving dishonesty or has disclosed the conviction or finding of guilt to the principal.

You should also consider:

• Mental capacity: Your chosen attorney must have the mental capacity to understand the responsibilities and duties they are agreeing to undertake.
• Trustworthiness: It's important to appoint someone you trust implicitly to honour your wishes in case of an emergency.
• Willingness to act: The person you choose must be willing to take on the role.

You can appoint a relative, friend, or professional adviser like a lawyer or accountant. You also have the option to appoint a trustee company or the Public Advocate in Victoria as your attorney. It's important to note that in the case of an Enduring Power of Attorney, the person you appoint cannot be a care worker, health provider, or accommodation provider for you unless they are also a close relative.

Common questions

What happens if I don't have a Power of Attorney?

If you don't have a Power of Attorney in place and you become unable to manage your own affairs due to physical or mental incapacity, there may not be anyone with the legal authority to make decisions on your behalf. In this situation, it may be necessary for an application to be made to the Victorian Civil and Administrative Tribunal (VCAT) to appoint an administrator and/or guardian to manage your affairs.

Can my Power of Attorney change or contest my Will?

No, your Power of Attorney cannot change or contest your Will while you are still living. The role of a Power of Attorney is to manage your affairs while you are alive, particularly if you are unable to do so yourself. Their power ceases when you pass away. After your death, the administration of your Will is the responsibility of your executor.

Do I need a lawyer to appoint a Power of Attorney?

While it's not legally required to have a lawyer appoint a Power of Attorney, it is highly recommended. Appointing a Power of Attorney involves making important and potentially complex legal decisions, and the team at Goldsmiths Lawyers can help you navigate these procedures to ensure that your rights and interests are protected.

A lawyer can provide valuable advice, ensure the document is correctly drafted and executed, and help you understand the implications of the powers you're granting to your appointed attorney(s).

Talk to us

At Goldsmiths Lawyers, our blend of industry expertise and an empathic, client-centric approach makes us more than able to help you navigate this entire process effectively. Our experienced team can provide you with expert guidance to help you understand and navigate the complexities of appointing a Power of Attorney and Medical Treatment Decision Maker. If you need guidance in appointing a Power of Attorney, enquire with us today.