Enduring and non-enduring powers of attorney

Eales & Mackenzie Lawyers Melbourne
What are powers of attorney

Powers of attorney are legal documents that allow you (the ‘principal’) to appoint someone else (the ‘attorney’) to make decisions for you. An attorney’s decision would have the same legal force as if you made that decision yourself.

Powers of attorney are made when you anticipate that you could be unable to make decisions for a fixed period of time regarding a specific matter (non-enduring) or for a continuous period of time into the future due to sickness or incapacity (enduring).

Who can I appoint

You can appoint more than one person jointly or jointly and severally. You can also appoint alternate attorneys.

Specifically, in relation to enduring powers of attorney, where more than one attorney is appointed, as principal you can appoint those attorneys to act as majority attorneys as well. To act by a majority is to act in unison if the majority of the attorneys agree to a certain course of action or if the majority agree to sign a document that requires their signatures.

What can powers of attorney be made in relation to

Under the Powers of Attorney Act 2014 (Vic), enduring and non-enduring powers of attorney can be made in relation to personal, financial or personal and financial affairs.

Under section 5A of the Medical Treatment Act 1988 (Vic), you can also make enduring powers of attorney (medical treatment).

A person appointed under a medical enduring power of attorney is a medical agent. A medical agent’s decision in relation to your medical treatment will defeat a contrary decision by your attorney for personal affairs.

When does the power start

You can specify that an attorney’s power start immediately, when you cease to have decision-making capacity, or at a specific time and date or occasion.

Where there is more than one attorney, or where your power of attorney is in relation to personal and financial affairs, you can have the power begin at different times for each attorney and for different affairs.

Changes to the laws governing powers of attorney in Victoria

The Powers of Attorney Act 2014 (Vic) has introduced:

• the presumption of capacity by the principal to appoint attorneys
• more onerous duties on attorneys when exercising their power and performing their functions
• more onerous witnessing requirements for attorneys when accepting their powers
• a change of nomenclature – the person who appoints an attorney is a ‘principal’ not a ‘donor’
• supportive attorneys, who can assist and support their principals by enabling the principals to make and give effect to their decisions
• the expansion of VCAT’s jurisdiction regarding powers of attorney
• civil and criminal offences for attorney misconduct

What about powers of attorney made before 1 September 2015

These powers of attorney remain valid subject to revocation by the principal or the Victorian Civil and Administrative Tribunal (VCAT).

If you are looking to have a non-enduring or enduring power of attorney prepared for yourself or for a closed one, please do not hesitate to contact Richard Mackenzie our office at (03) 8621 1000 or via email at dick@emlawyers.com.au.

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