General and Enduring powers of attorney. Empowering people for future decision-making

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1 General and Enduring powers of attorney Empowering people for future decision-making

2 Why have enduring powers of attorney? life is unpredictable gives you control over who makes decisions on your behalf in the event that you cannot creates formal relationship with someone who knows your wishes for financial, medical or lifestyle matters Avoid an application to VCAT for the appointment of guardian/administrator

3 Powers of attorney Definition A legal document where you ( the donor ) gives someone ( the attorney ) the power to make decisions for you. There are four powers 1. general power of attorney 2. enduring power of attorney (financial) 3. enduring power of attorney (medical treatment) 4. enduring power of guardianship.

4 Enduring powers of attorney Who can make one? You must be 18 years of age and have capacity. Capacity or legal capacity means you have the ability to reason things out. You can understand, retain, believe, evaluate and weigh up relevant information.

5 Enduring powers of attorney At the time of making the appointment, the donor must be able to understand matters such as: the sorts of powers the attorney will have the sorts of decisions they will have the authority to make the effects that their power could have on the donor how to cancel the arrangement in the future

6 Enduring powers of attorney Choosing an attorney must be 18 and have capacity themselves know and understand the donor s interests and wishes have the necessary skills be trustworthy be available and prepared to do the job donor can revoke EPA while competent and appoint someone else.

7 Enduring power of attorney (financial) Instruments Act 1958 for financial and legal decisions only e.g. managing your banking, property or paying bills Note: Instruments Act 1958 was amended in 2004, but all existing and valid enduring power of attorneys made prior to this remain valid

8 Enduring power of attorney (financial) Making the appointment can specify when the power begins can appoint more than one attorney joint joint and severally alternative can place conditions/limitations on the operation of the power signing of the form must be witnessed attorney(s) must formally accept the appointment review the appointment with the donor while competent at least every two years.

9 Enduring power of attorney (financial) Responsibilities of the attorney The attorney must: act in the donor s best interests wherever possible, make the same decision the donor would have made keep accurate records of dealings and transactions made under the power keep the donor's property and money separate from their own avoid any conflicts of interest

10 Enduring power of attorney (medical treatment) Medical Treatment Act 1988 for medical treatment decisions only e.g. agreeing to medication or surgery attorney is known as the agent

11 Enduring power of attorney (medical treatment) Making the appointment can only appoint one agent can appoint alternate agent power begins when person loses capacity review appointment every two years signing of the form must be witnessed

12 Enduring power of attorney (medical treatment) Agent s powers agent can consent to medical and dental treatment, and refuse medical and dental treatment agent can only refuse medical treatment on behalf of a patient if: the treatment would cause unreasonable distress, or the agent believes that the donor would consider the treatment unwarranted

13 Enduring power of attorney (medical treatment) Limitation on agent s powers cannot consent to special procedures sterilisation termination of pregnancy removal of tissue for transplant These require consent from VCAT. cannot consent to psychiatric treatment governed by the Mental Health Act 1986

14 Enduring power of guardianship Guardianship and Administration Act 1986 for lifestyle decisions only e.g. where the person lives or healthcare they receive attorney is known as the guardian

15 Enduring power of guardianship Making the appointment can only appoint one guardian can appoint an alternative guardian cannot appoint professional carer power begins when donor loses capacity recommend to review appointment every two years

16 Enduring power of guardianship Making the appointment (cont.) can specify the guardian s powers o accommodation o healthcare o access to persons o employment can state wishes for your guardian to take into account when making decisions.

17 Summary of Enduring Power of Attorneys General Power of Attorney Decisions - Financial & some legal Starts: Immediately or when the donor specifies it will start Ends: the donor cancels it, specified date, the donor loses legal capacity, the attorney becomes bankrupt, resigns or dies the donor dies Can appoint more than one decision-maker No witnesses required Enduring Power of Attorney (Financial) Decisions - Financial & some legal Starts: Immediately or when the donor specifies it will start Ends: the donor cancels it, VCAT makes an order the attorney becomes bankrupt, resigns or dies the donor dies Can appoint more than one decision-maker Two witnesses, one authorised to witness statutory declaration. Enduring Power of Attorney (Medical Treatment) Decisions Medical Starts: when the donor loses capacity to make decisions about their medical treatment Ends: the donor cancels it VCAT makes an order the agent resigns or dies the donor dies Can appoint one decision-maker Two witnesses, one authorised to witness statutory declaration. Enduring Power of Guardianship Decisions Personal and Lifestyle Starts: when the donor loses capacity to make decisions about lifestyle matters Ends: the donor cancels it VCAT makes an order the enduring guardian resigns or dies the donor dies Can appoint one decision-maker Two witnesses, one authorised to witness statutory declaration.

18 Case study Joe, is 55 and single and has formed a very close friendship with a neighbour, Mandy. They spend hours together every day and both seem very happy in each other s company. Joe has an ABI following a workplace accident but when competent appointed his nephew Ross as enduring guardian and niece Karen as his EPA financial. Ross is very concerned about Mandy s motives, particularly as Joe received a large compensation payment. He wants to limit the amount of time Joe and Mandy spend together to one day a week. He also asks Karen if Joe has been giving any money to Mandy.

19 Case study - Resolution Ross s role as enduring guardian is to make decisions in Joe s best interest while taking into account Joe s wishes. Joe clearly enjoys spending time with Mandy and Ross should consider the social benefit to Joe. Karen, as financial attorney, is not required to provide Ross with details of Joe s financial situation unless this was required for Ross to make a decisions as enduring guardian. For example, whether Joe could afford particular accommodation or services. Ross should raise with Karen his concerns about possible financial exploitation of Joe and Karen would be wise to be alert to this potential and put in the protections as required.

20 Resources Publications and DVDs available on the OPA website or in hard copy

21 A new on-line interactive program Available on the website or on CD

22 Order Take Control Order Take Control: a kit for making powers of attorney and guardianship from: Victoria Legal Aid Ph: (03) online at by calling OPA (for single copies only, not bulk orders) on

23 For more information... OPA Advice Service Multilingual publications available Permission is required from the Office of the Public Advocate to use this material

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