Enduring Power of Attorney
Choosing an attorney
When you make a power of attorney, the person who gives the authority is known as the principal, and the person appointed to act on their behalf is called the attorney. It’s important to choose someone you trust—someone who understands your values and will act in your best interests when making decisions on your behalf.
If you appoint two or more attorneys or two or more alternate attorneys, you should specify how you want them to make decisions. You may appoint them to act:
-
jointly — they must make decisions together (and all sign any document)
-
jointly and severally — they can make decisions together or independently (for example, either all sign any document, or one attorney alone can sign any document)
-
severally — they can make decisions independently (and one attorney alone can sign any document)
-
majority — a majority need to agree to make a decision (and the majority who agree sign any document).
Who Can Be Appointed as an Attorney?
1. Individual
A person can be appointed as an attorney under an Enduring Power of Attorney if they:
-
Are 18 years of age or older;
-
Are not an insolvent under administration (i.e. not bankrupt);
-
If appointed to make financial decisions:
-
Have not been convicted of an offence involving dishonesty, or
-
If they have been convicted or found guilty of such an offence, they have told the principal about the conviction and the conviction is formally recorded in the document; and
-
-
Are not:
-
A care worker for the principal,
-
A healthcare provider to the principal, or
-
An accommodation provider for the principal.
-
2.Trustee Companies
A trustee company can be appointed as an attorney for financial matters, as long as it is not undergoing winding up proceedings.
3. The Public Advocate
The Public Advocate can be appointed as an attorney for personal matters under an Enduring Power of Attorney.
Types of Powers of Attorney
There are three main types of powers of attorney, each designed for different purposes and circumstances:
1. General (Non-Enduring) Power of Attorney
This authorises someone to make financial or legal decisions on your behalf for a specific period or purpose. It is often used for short-term arrangements (e.g. while you're overseas) and automatically ends if you lose decision-making capacity.
2. Supportive Power of Attorney
This allows someone to assist you with making and communicating decisions, rather than making decisions for you. It is designed for individuals who have decision-making capacity but need help managing certain aspects of their affairs.
3. Enduring Power of Attorney
This grants someone the authority to make financial, legal, and personal decisions on your behalf and continues even if you lose the capacity to make decisions yourself. It is often used as part of long-term planning.
What if I don't have a Power of Attorney?
If you don’t have a power of attorney:
-
you may not be able to choose who should make decisions on your behalf
-
it could lead to conflict over who should take charge of the decision-making process if you are unable to do this yourself
-
the Victorian Civil and Administrative Tribunal (VCAT) may be asked to appoint an administrator or guardian to help you.
What is decision making capacity?
You have decision-making capacity if you are able to:
-
understand the information relevant to the decision and the effect of the decision
-
retain that information to the extent necessary to make that decision
-
use or weigh that information as part of the process of making the decision
-
communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.
How to execute an Enduring Power of Attorney?
Two adult witnesses are required for an enduring power of attorney appointment.
One must be authorised to witness affidavits or a registered medical practitioner.
The following people cannot be a witness:
• a relative of the person making the appointment
• a person who is being appointed (an attorney or alternative attorney), or their relative
• a care worker or accommodation provider for the person making the appointment.
Enduring Power of Attorney
-
Advice and guidance on choosing the right attorney(s) for your circumstances
-
Preparation of your EPOA document tailored to your needs
-
Clear explanation of powers granted – including financial, legal, and personal/lifestyle decisions
-
Witnessing and execution of the document to ensure it is legally valid
