Changes to Powers of Attorney

September 8, 2015

The Victorian legal framework for powers of attorney has changed as at  1 September 2015. The new legislation establishes stricter requirements for making a valid power of attorney and clearly outlines the powers and obligations of the attorney. The abuse of power by an attorney can now result in a criminal offence punishable by up to five years in jail. The Victorian Civil and Administrative Tribunal (VCAT) has been given the power to oversee the new legislation.

All persons making a power of attorney will be known as the ‘principal’, and those they appoint to be known as the ‘attorney’. The terms ‘donor’, ‘appointer’ and ‘enduring guardian’ will no longer be used. The legislation also creates a completely new role, the ‘supportive attorney’. Importantly, the ‘medical enduring power of attorney’ is not affected by the new Act and continues to be regulated by the Medical Treatment Act 1988.

When making a power of attorney, choosing the right powers and selecting the most suitable people is critical. Decisions taken by the attorney will have the same legal force as if the person who appointed them had taken those decisions themselves.

• General non-enduring power of attorney – is mostly used for a specific purpose and a set period of time. It does not continue if the principal should lose capacity to make decisions.
• Supportive attorney – promotes autonomy and dignity for a person who is able to make various decisions themselves, provided they have support to make and act on those decisions. A supportive attorney has the legal capacity to obtain information for the principal and to communicate the principal’s decision.
• Enduring power of attorney – now encompasses both personal and financial matters. The principal decides what power to give, who to appoint and when the power commences.
• Medical enduring power of attorney – the attorney can decide whether to consent to medical treatment and can refuse medical treatment on the principal’s behalf. The medical attorney can only act if the principal is unable to make their own decisions about medical treatment. The medical attorney decisions have priority over the decisions of an attorney appointed for personal matters who also has the power to consent to this.

Powers of attorney created before 1 September 2015, which are valid under current legislation, will remain valid after that date. This is general advice only and you should not act on it without consulting your adviser. Call us on 03 9859 7899 if you would like advice particular to your own financial circumstances.