Powers of Attorney
A power of attorney is a legal document that allows someone (the “principal”) to choose another person (the “attorney”) to make decisions on their behalf about financial and personal matters.
Making a power of attorney ensures that the principal has someone who can make decisions if, or when, they are no longer able to make decisions for themselves.
The principal may be unable to make decisions temporarily (such as when they are overseas or ill) or permanently (because they have a medical condition or disability).
How to Appoint an Attorney
A power of attorney is simply a form that is completed, signed, and witnessed. A power of attorney can be made without a solicitor, but a solicitor can help to ensure that there are no 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). Only a person with the necessary mental capacity can make a power of attorney for themselves – it is not possible to make a power of attorney on behalf of someone else.
In Victoria, there are three types of powers of attorney that are suited to different situations. The three types are:
- enduring powers of attorney (for financial, legal and personal decisions).
- non-enduring powers of attorney.
- supportive powers of attorney (for help with decisions).
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 authority to make personal decisions, they cannot make medical treatment decisions unless they are also appointed as the “medical treatment decision maker”.
Non-Enduring and Supportive Powers of Attorney
The non-enduring power and the supportive powers of attorney documents continue until they are either revoked by the principal or the principal loses the capacity to make legal decisions for themselves.
How to Choose an 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 eighteen 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 solicitor or accountant) under a power of attorney, but most people choose from amongst their closest family and friends.