2015 Powers of attorney in Victoria

Helen Rushford

Coordinator, Advice & Education Service

22 October 2015

Powers of attorney

Definition

• a legal document where an adult with decision-making capacity (known as the principal) gives another adult with capacity (known as the attorney) the power to make decisions for them or support them to make their own decisions.

• powers of attorney operate while the principal is alive but wants or needs someone to make decisions for them or to support them to make their own decisions.

• when the principal dies, the authority of the attorney ceases.

• every state and territory in Australia has its own laws for powers of attorney.

Power of attorney laws in Victoria

PRIOR TO 1 SEPTEMBER 2015 FROM 1 SEPTEMBER 2015

Instruments Act 1958•general power of attorney

•enduring power of attorney (financial)*

Guardianship & Administration Act 1986•enduring power of guardianship*

Medical Treatment Act 1988•enduring power of attorney (medical treatment)

*remain valid under Powers of Attorney Act

Powers of Attorney Act 2014•general non-enduring power of attorney

• supportive attorney appointments for personal and or financial matters

•enduring power of attorney for personal and or financial matters

Medical Treatment Act 1988• enduring power of attorney (medical treatment)

Decision Making Capacity

• A person is presumed to have decision making capacity unless there is evidence to the contrary

• A person may have decision-making capacity for some matters and not others

• Lack of decision making capacity may be temporary, and not permanent

• A person should be offered practicable and appropriate support to make their own decisions

• Assumptions about a person’s capacity to make decisions should not be made on the basis of their appearance or because they have made a decision that is considered unwise

Decision Making Capacity

A person has capacity to make a decision if they are able to:

• understand the information relevant to the decision and effect of the decision; and

• retain that information to the extent necessary to make the decision; and

• use or weigh that information as part of the process of making the decision; and

• communicate the decisions in some way, including by speech, gestures or other means

General non-enduring power of attorney

-------------------------------Decisions - Financial &some legal-------------------------------Starts: Immediately or when the principal specifies it will start-------------------------------Ends:• the principal cancels it, • the principal loses legal capacity,• the attorney resigns or dies • the principal dies-------------------------------Can appoint more than one decision-makers; can appoint alternatives-------------------------------No witnesses required

Supportive attorney appointment

-------------------------------Decisions – support for personal and financial ----------------------------Starts: Immediately or when the principal specifies it will start-------------------------------Ends:• the principal cancels it, • the supportive attorney resigns or dies• the principal loses capacity•the principal dies-------------------------------Can appoint more than one supportive attorney; can appoint alternatives-------------------------------Two witnesses, one authorised to witness statutory declaration.

Enduring Power of attorney

-----------------------------Decisions – financial and personal-----------------------------Starts: Immediately or when the principal specifies it will start-----------------------------Ends:• the principal cancels it • VCAT makes an order• no attorneys to act• the principal dies-----------------------------Can appoint more than one decision-maker; can appoint alternatives-----------------------------Two witnesses, one authorised to witness affidavits or a medical practitioner.

Enduring Power of Attorney (Medical

Treatment)------------------------------Decisions – Medical------------------------------Starts: when the principal loses capacity to make decisions about their medical treatment------------------------------Ends:• the principal cancels it • VCAT makes an order• the agent resigns or dies • the principal dies------------------------------Can appoint one decision-maker; can appoint alternative------------------------------Two witnesses, one authorised to witness statutory declaration.

Summary of Power of Attorneys

Supportive attorney appointments

Supportive attorney appointments

Powers of Attorney Act 2014

• Designed to promote the rights of people with disability to be supported to make their own decisions about things that affect them

• Can be made by any adult who has the capacity to make the appointment, including adults without disability

• It allows the appointment of someone to support decisions made by the principal rather than make substitute decisions as occurs under an enduring power of attorney

• The formal arrangement of a supportive attorney appointment can help to recognise the authority of the person in the support role

Capacity to make supportive attorney appointments

At the time of making the appointment, the principal must be able to understand matters such as:

• the appointment enables them to make their own decisions with support

• they can choose a person to support them in making decisions

• supported decisions are the principal’s decisions

• when the appointment commences

• the appointment can be revoked while they have the capacity to do so

Supportive attorney appointments

Making the appointment

• can be for financial and personal matters

• can specify when the appointment begins

• can appoint more than one supportive attorney to act separately

• can appoint alternative supportive attorney

• signing of the form must be witnessed

• supportive attorney(s) formally accepts the appointment

• appointment cannot operate if the principal does not have decision-making capacity

• appointment ends if the principal loses decision-making capacity permanently

Supportive attorney appointments

Supportive attorney powers:

The principal can give the supportive attorney all or any of three powers to support them to make decisions about financial and personal matters. The three powers are:

•Information power

•Communication power

•Power to give effect to decisions

Supportive attorneys cannot be involved in significant financial transactions.

Significant financial transactions

A supportive attorney can’t give effect to significant financial transactions. Significant financial transactions include:

•buying or selling a house

•entering into a secured loan

•most investments

•buying or selling significant personal property

For these transactions organisations, such as banks and real estate agents, are not able to deal with the supportive attorney.

Supportive attorney appointments

Choosing a supportive attorney

A supportive attorney appointed for financial or personal matters cannot be:

• insolvent under administration (bankrupt)

• a care worker for the principal

• a health provider for the principal

• an accommodation provider for the principal

A supportive attorney appointed for financial matters:

• must not have been convicted or found guilty of an offence involving dishonesty unless this is disclosed to the principal and recorded in the supportive attorney appointment

Duties and obligations of the supportive attorney

A supportive attorney must:

• act honestly, diligently, and in good faith

• exercise reasonable skill and care

• not use the position for profit

• avoid acting where is or may be a conflict of interest

• discuss anything about a supported decision with the principal in a way the principal will understand and that will help the principal make the decision

Enduring power of attorney

Why have enduring powers of attorney?

• life is unpredictable

• general non-enduring power of attorney becomes invalid if the principal loses capacity; ‘enduring’ means the power continues

• allows the principal control over who makes decisions on their behalf in the event that they can’t

• creates formal relationship with someone who knows the principal’s wishes for financial, lifestyle or medical matters

• avoids applications to VCAT for guardian/administrator

Enduring power of attorney

Powers of Attorney Act 2014

The principal can appoint attorney(s) to make decisions about:

• financial matters

• personal matters

• personal and financial matters

Enduring power of attorney

Financial matters

Any matters relating to the principal’s financial or property affairs including:

• paying expenses

• making investments

• real estate transactions

• carrying on a business

Enduring power of attorney

Personal matters

Any matter relating to the principal’s personal or lifestyle affairs including:

• health care matters (including consent to medical/dental treatment)

• accommodation

• who the principal has contact with

An attorney appointed for personal matters does not have the authority to refuse medical treatment on behalf of the principal

Capacity to make enduring powers of attorney

At the time of making the appointment, the principal must be able to understand matters such as:

• they can set conditions and give instructions

• when the power commences

• the attorney has the same powers as the principal for the matters in which they have been appointed

• the power continues if they lose capacity

• they can revoke the power at any time while they have capacity to do so

• when they lose capacity they will be unable to oversee the use of the power

Enduring power of attorney

Making the appointment

• can specify when the power begins

• can appoint more than one attorney

jointly

severally

jointly and severally

majority

• can appoint alternative attorney(s)

• can place conditions/limitations on the operation of the power

• signing of the form must be witnessed

• attorney(s) must formally accept the appointment

Enduring power of attorney

Choosing an attorney

An attorney appointed for financial or personal matters cannot be:

• insolvent under administration (bankrupt)

• a care worker for the principal

• a health provider for the principal

• an accommodation provider for the principal

An attorney appointed for financial matters:

• must not have been convicted or found guilty of an offence involving dishonesty unless this is disclosed to the principal and recorded in the enduring power of attorney

Decision making by attorneys

If an attorney is exercising their powers when the principal does not have decision making capacity they must :

• do so in a way that is as least restrictive of the principal’s ability to decide and act as is possible in the circumstances; and

• ensure that, the principal is given practicable and appropriate support to enable the them to participate in decisions that affect them as much as possible in the circumstances

Decision making by attorneys

In making a decision the attorney must:

• give all practicable and appropriate effect to the principal’s wishes

• take reasonable steps to encourage the principal to participate in decision making

• act in a way that promotes the personal and social wellbeing of the principal, including by:

• recognising the dignity of the principal

• considering the principal’s existing supportive relationships, religion, values and cultural and linguistic needs

• respecting the confidentiality of the principal

Duties of the attorney

An attorney must:

• act honestly, diligently, and in good faith

• exercise reasonable skill and care

• not use the position for profit

• avoid acting where is or may be a conflict of interest

• not disclose confidential information gained as the attorney

• keep accurate records and accounts

What an attorney cannot do

• delegate a power under the enduring power of attorney

• make or revoke a Will for the principal

• make or revoke an enduring power of attorney for the principal

• vote on behalf of the principal

• consent to marriage, dissolution of marriage, sexual relationship

• make decisions about care and wellbeing of a child of the principal, or about adoption, or about assisted reproduction

• manage the estate of the principal upon their death

• consent to an unlawful act

What an attorney cannot do unless authorised

Unless authorised by the principal in the enduring power of attorney, an attorney cannot:

• provide from the principal’s property for the needs of a dependant of the principal

• be paid for carrying out the role

Protections against abuse

Conflict transactions • an attorney for financial matters cannot to enter into a transaction if there is or

may be a conflict between their duty to the principal and the interests of the attorney, or a relative, business associate or close friend of the attorney

Gifts

• limits on an attorney making gifts from the principal’s property

VCAT • can order compensation to the principal for any loss caused by the attorney in

contravening the Act

Offences • new offences for dishonestly obtaining or using an enduring power of

attorney, punishable by up to five years' imprisonment

Medical enduring power of attorney

Medical enduring power of attorney

Medical Treatment Act 1988

Enduring power of attorney (medical treatment):

• for medical treatment decisions only, including consenting to or refusing medical treatment such as diagnostic procedures or surgery

• attorney is known as ‘the agent’

Medical enduring power of attorney

Making the appointment

• can only appoint one agent

• can appoint alternate agent

• power begins when principal loses capacity

• review of appointment recommended every two years

• signing of the form must be witnessed

Medical enduring power of attorney

Agent’s powers

• an agent can consent to medical and dental treatment an agent’s decisions take precedence over the decisions of

an attorney for personal matters or an enduring guardian with health care powers appointed before 1 September 2015

• an agent can also refuse medical treatment

• an agent can only refuse medical treatment on behalf of a patient if:

the treatment would cause unreasonable distress, or the agent believes that the principal would consider the

treatment unwarranted

Medical enduring power of attorney

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 2014

Confused?

• Fortunately, OPA has a team of skilled, knowledgeable and experienced Advice Service workers who can help you through all of this

Resources

For more information...

OPA Advice Service

1300 309 337www.publicadvocate.vic.gov.au

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