Powers of Attorney
A power of attorney is a legal document that allows someone (the ‘principal’) to choose another person (the ‘attorney’) to make certain decisions on their behalf and in specified circumstances. Different types of powers of attorney are used for different situations and circumstances. In Victoria, there are three types of powers of attorney:
- enduring powers of attorney (for financial, legal, and personal decisions)
- non-enduring powers of attorney
- supportive powers of attorney (for help with decisions)
We can help you choose and prepare a power of attorney suited to your needs.
Who can make a Power of Attorney?
Anyone over 18 years who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will, and who can communicate clearly what those decisions are can make a power of attorney. A person with mental capacity can only make a power of attorney for themself – it is not possible to make a power of attorney on behalf of someone else.
How to appoint an Attorney
A power of attorney is simply a form that is completed, signed, and witnessed. A lawyer can help explain the different types of powers of attorney so you can choose what is right for you. Your lawyer will make sure the form is completed and signed correctly to minimise any questions about the validity of the appointment.
When a principal makes a power of attorney, they determine the scope of the power (such as limiting it to financial decisions involving amounts less than a certain limit).
Who should I appoint as my Attorney?
People sometimes believe that an ‘attorney’ must be a solicitor. This is not the case. An attorney can be any person over the age of 18 who has the mental capacity to make important decisions. This does not require any special qualifications, but an attorney should be someone who is trustworthy and capable of acting entirely in the interests of the principal. It is possible to appoint a professional (such as a lawyer or accountant) under a power of attorney, but most people choose from amongst their closest family and friends.
When should I make a Power of Attorney?
Before you need it! These documents safeguard your interests in the event of something unforeseen happening, like an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements, and your health.
Can I change my mind?
Yes, provided you still have the decision-making capacity to do so you can revoke or change a power of attorney. This must be done in a legally binding way however, so please seek legal advice.
What are the legal responsibilities of my Attorney?
Attorneys must act in your best interests. While you have mental capacity, they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all their dealings with your money.
Enduring Powers of Attorney
An ‘enduring’ power of attorney is the most powerful appointment because it means that an attorney continues to make decisions after the principal loses capacity to make decisions for themselves. The terms of the power of attorney will determine the scope of the attorney’s authority and when it will start. For instance, the power may be limited to personal matters (such as where the principal will live) and not extend to financial matters (such as where the principal’s money is invested). The principal may appoint more than one attorney and require the attorneys to work together to make significant decisions.
Even if an attorney has the authority to make personal decisions, they cannot make medical treatment decisions unless they are also appointed as the ‘medical treatment decision maker’.
Where to next?
Depending on the type of power of attorney granted, appointing an attorney ensures that you have someone to manage certain things if, or when, you are unable to do so yourself. You may be unable to make decisions temporarily (such as when you are overseas or ill) or permanently (because you have a medical condition or disability).
It is important that you discuss your situation with a lawyer who can give you advice relevant to your needs and circumstances. You should also discuss your wishes with your family to avoid unnecessary conflict and stress.
If you need assistance, contact [email protected] or call 03 9741 3777 to speak to an experienced power of attorney lawyer in Werribee.