What is an enduring power of attorney?
An enduring power of attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney. The power endures – or continues – if and when you are unable to make decisions.
You can limit the power to cover only specific matters, and you can choose when the powers start.
Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.
You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so.
Note: You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.
What happens if you don't make an enduring power of attorney?
Important: You should only make an enduring power of attorney if there is someone you trust, who understands what is important to you, and is willing and able to act on your wishes as far as it is possible to do so. Otherwise, you shouldn’t make an enduring power of attorney.
If you don’t appoint anyone, and are unable to make a decision when it needs to be made, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make the decision, such as the Public Advocate or a trustee company.
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.
Capacity is decision specific. A person may have capacity for some decisions but not others.
How to choose an attorney
If you choose to appoint an attorney, it’s vital you choose the right person or persons.
This is because you are giving them the power to make important decisions for you at a vulnerable time of your life.
You need to choose someone you trust to stand in your place and make the decision you would make for yourself if you had capacity. They should be unlikely to die before you, and be willing, able and available at the time a decision may need to be made.
You can appoint more than one attorney.
What happens when you appoint more than one attorney?
If you appoint more than one attorney, you should specify how you want them to make decisions.
You may appoint your alternative attorneys 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).
You should ensure that whatever you decide will be a workable arrangement
Which Enduring power of attorney forms to complete?
There are tow types of forms the short and long form that can be completed.
The short form allows you to appoint an attorney and up to two alternative attorneys. You also need to specify what decisions your attorney can make.
Use the long form if you wish to appoint more attorneys, or more alternative attorneys. You will also need to use the long form if you need someone to sign for you due to physical disability.
Ending and cancelling an enduring power of attorney
An enduring power of attorney ends if:
- you revoke (cancel) the power (while you have capacity to do so)
- you make a later enduring power of attorney (unless you specify that their earlier one is not cancelled)
- the Victorian Civil and Administrative Tribunal (VCAT) revokes the power
- you die.
How to revoke an enduring power of attorney
If you revoke the enduring power of attorney, you must take reasonable steps to inform your attorney(s). For example, you can write to the last known address of the attorney.
Even if you do not give this notification, the revocation is valid if all other requirements are met.
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