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Enduring Power of Attorney

1 May 2016

Appointing an enduring power of attorney is an important decision and one that we all should consider while we have the capacity to make decisions, as we get older it becomes more relevant, the following information is from the Office of the Public Advocate.

An enduring power of attorney is a legal document where an individual appoints another person (or people), called the ‘attorney(s)’, to make decisions for them about:

  • financial matters
  • personal matters
  • both financial and personal matters or
  • specific financial and/or personal matters.

The power ‘endures’. This means that it continues even if and when the person loses capacity to make their own decisions about matters. The attorney’s decisions have the same legal force as if the person who appointed them had made them. Enduring powers of attorney are made under thePowers of Attorney Act 2014.

The person who makes the appointment (known as the ‘principal’) must be 18 years of age or older and have decision making capacity to make the appointment.

How to make an enduring power of attorney

  • Step 1: Decide what, when and who
  • Step 2: Complete the form and sign in front of witnesses
  • Step 3. Copy and store
  • Ending and cancelling

The person making the enduring power of attorney should decide:

  • what powers to give
  • when the power starts
  • who to appoint.
What power to give

The principal decides the types of decisions their attorney(s) can make. These can be decisions about:

  • all financial matters
  • all personal matters
  • all personal and financial matters.

Or the principal can limit the attorney(s)’ power to making decisions about specific financial and personal matters.

Financial matters  are any matter relating to the principal’s:

  • financial affairs or
  • property affairs.

Financial matters include any legal matter that relates to the financial or property affairs of the principal.

Personal matters are matters relating to the principal’s:

  • personal affairs and
  • lifestyle affairs.

Personal matters include any legal matter that relates to the principal’s personal and lifestyle affairs.

Examples of personal matters are health care matters, including whether to consent to medical treatment, access to support services and where and with whom a person lives.

 Things an attorney can’t do

An attorney appointed for all personal matters has power to consent to medical treatment but does not have the power to refuse medical treatment. Only a medical agent appointed under an enduring power of attorney (medical treatment) or a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) with power to make decisions about medical treatment can refuse medical treatment on behalf of another person.

An attorney does not have power to do the following things on behalf of the principal:

  • vote
  • make decisions about the care or wellbeing of their children
  • make (or revoke) a will
  • make (or revoke) an enduring power.
  • consent to marriage or a sexual relationship or dissolution of a marriage
  • make decisions about adoption of a child
  • enter into surrogacy arrangements
  • manage the estate of the principal on their death
  • consent to an unlawful act.

Contact us for more information on how to appoint an enduring power of attorney.

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