A power of attorney allows a person with decision making capacity (the principal) to appoint another person (the attorney) to make certain decisions on behalf of the principal. The Victorian legal framework for powers of attorney changed on 1 September 2015, with the commencement of the Powers of Attorney Act 2014 (POAs Act). (A copy of the POAs Act can be found at www.legislation.vic.gov.au.) Powers of attorney valid under previous legislation will continue to be valid after the new legislation commences. The new POAs Act does not affect medical powers of attorney.
The new powers of attorney legislation had three main objectives:
- to consolidate and clarify the legal framework applying to enduring powers of attorney;
- to increase protection of the principal’s interests; and
- to introduce a new type of appointment: the supportive attorney.
Consolidation and clarification
The POAs Act clarifies the responsibilities of key people involved in a power of attorney arrangement. This includes stating the principles which should guide an attorney in carrying out his/her duties and the scope of the attorney’s responsibilities
The POAs Act consolidates the current enduring power of attorney (financial) and enduring power of guardianship into one ‘enduring power of attorney’, in which people will be able to make arrangements for management of both their financial and lifestyle matters.
Increased protections of the principal’s interests
The POAs Act increases protections of principals by:
- stating that a person is presumed to have decision making capacity unless there is evidence to the contrary;
- introducing a definition of ‘decision making capacity’;
- narrowing the categories of persons eligible to witness the making of an enduring power of attorney so that one of the witnesses must be either a medical practitioner or someone eligible to witness an affidavit;
- increasing criminal penalties for abuse of the enduring attorney role; and
- empowering the Victorian Civil and Administrative Tribunal (VCAT) to oversee enduring powers of attorney arrangements.
Introduction of the supportive attorney appointment
The POAs Act also introduces a new role: the supportive attorney. In the supportive attorney arrangement the decisions are made by the principal. The supportive attorney’s role is to support the principal to make decisions. Supportive attorneys will therefore have authority to obtain relevant information, to communicate the principal’s decision and to help the principal take action on a decision (except in the case of a significant financial decision). The POAs Act introduces safeguards against abuse of the supportive attorney role similar to those for enduring powers of attorney.