Powers of Attorney

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A Power of Attorney is a legal document that allow an individual (Principal) to appoint another person (Attorney) to make decisions and take actions on behalf of the Principal. A Power Of Attorney can be a useful tool for individuals to plan for their future and ensure that their affairs are managed in the way they desire, even if they become mentally or physically incapacitated or if they are unavailable to deal with a particular matter cause they are overseas or uncontactable.

In the State of Victoria, Australia, these documents are governed by the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019.

A Powers of Attorney can be:

  • general, which grants the Attorney broad authority to make decisions on the Principal's behalf or specific, which grants authority for specific tasks or decisions;
  • enduring, which means they remain in effect even if the Principal becomes mentally incapacitated or non-enduring, which means they only remain in effect while the Principal is capable of making their own decisions.

In Victoria, Australia, there are several different types of Powers of Attorney that can be created, depending on the specific needs and circumstances of the individual. These include:

  1. General Power of Attorney: This type of Power of Attorney grants the attorney broad authority to make decisions and take actions on the Principal's behalf. This can include managing financial affairs, making investments, and buying and selling property.
  2. Specific Power of Attorney: This type of Power of Attorney is limited to specific tasks or decisions and can include authority to sell a specific property, manage a specific bank account or make medical decisions on the Principal's behalf.
  3. Enduring Power of Attorney: This type of Power of Attorney remains in effect even if the Principal becomes mentally incapacitated. This can be used to appoint an attorney to manage the Principal's affairs and make decisions on their behalf if they are unable to do so. Within an Enduring Power of Attorney the Principle can nominate if the Attorney will have powers in respect to either / or both financial matters or personal matters:
    1. Financial matters in an Enduring Power of Attorney refer to the management of the Principal's financial affairs, including the management of bank accounts, investments, and the buying and selling of property. An Attorney appointed for financial matters would have the authority to make decisions and take actions related to these financial matters on the Principal's behalf.
    2. Personal matters in an Enduring Power of Attorney refer to the management of the Principal's personal affairs, including decisions related to their accommodation, care and lifestyle (but not medical matters). An Attorney appointed for personal matters would have the authority to make decisions and take actions related to these personal matters on the Principal's behalf.
  4. An Attorney appointed for personal matters has no authority over the Principal's financial matters and an Attorney appointed for financial matters has no authority over the Principal's personal matters, unless both powers are granted in the Enduring Power of Attorney.
  5. Medical Treatment Decision Maker Appointment (formerly Power of Attorney (Medical)): This type of Power of Attorney is used to appoint a person to make medical treatment decisions on behalf of the Principal, when the Principal is unable to do so.
  6. Advance Care Directive: An Advance care directive is a legal document that allows an individual to provide guidance to their Medical Treatment Decision Maker, and/or to express their wishes in regard to the type of medical treatment they would like to receive if they are unable to make decisions for themselves.

It is important to note that the powers of attorney must be executed in accordance with the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019 to be valid. The two acts provide that a Power of Attorney or Medical Treatment Decision Maker Appointment must be witnessed by two independent person over the age of 18 and that one of them must be an authorised witness being any of:

  • a lawyer;
  • a justice of the peace;
  • a police officer;
  • a doctor;
  • a nurse practitioner;
  • a dentist;
  • a pharmacist;
  • a teacher;
  • a bank officer;
  • a postmaster or postmistress;
  • a member of the Australian Federal Police;
  • a member of the Victoria Police;
  • an Australian consular officer or an Australian diplomatic officer; or
  • an employee of the Commonwealth authorized under a law of the Commonwealth to take statutory declarations.

The Attorney has a fiduciary duty to act in the best interest of the Principal and must follow any instructions or limitations set out in the Power of Attorney document. The Principal can revoke or change the Power of Attorney at any time while they have capacity and will cease to operate upon the passing of the Principal.

At P&B Law we can help to explain what Powers of Attorney you require, what conditions they should contain as well as preparing the actual documents and arranging for them to be signed and witnessed to ensure they are fully valid and enforceable.