In Victoria there are three types of Power of Attorney (POA) Forms:
2️⃣ Enduring Power of Attorney [this document]; and a
3️⃣ Supportive Power of Attorney (SPOA).
If you want the Power of Attorney (POA) to continue after you lose your decision-making capacity you must use an Enduring Power of Attorney (EPOA).
You need to consider that an Attorney will have enormous power over your financial + legal affairs.
You can appoint anyone you will agree to take on the responsibility.
You should choose a person whom you can trust and who will manage your finances in a responsible way.
Usually one or more family members or close friends are appointed as Power of Attorney, alternatively you may prefer to approach the States Trustees VIC or a private trustee company or lawyer to act as your attorneys, but fees will apply.
A person appointed as an Attorney must not be insolvent and must disclose to you any convictions of an offence involving dishonesty.
In order to be able to grant an Enduring Power of Attorney (EPOA), you must:
1️⃣ Be 18 years of age or over; and
2️⃣ Have decision-making capacity in relation to making the Enduring Power of Attorney (EPOA).
The term decision-making capacity is defined in section 4 of the Powers of Attorney Act 2014 (VIC).
A person has the capacity to make a decision as to a matter if the person is able to:-
➲ Understand the information relevant to the decision and the effect of the decision;
➲ Retain that information to the extent necessary to make the decision;
➲ Use or weigh that information as part of the process of making the decision; and
➲ Communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.
Yes. A Power of Attorney [whether a POA or EPOA] is an important + powerful legal document.
You should get legal advice before you sign it.
An Enduring Power of Attorney (EPOA) must be in the approved written form and comply with the requirements outlined in the Powers of Attorney Act 2014 (VIC):
1️⃣ The Enduring Power of Attorney (EPOA) form must be signed and dated by two adult witnesses in the presence of each other and the principal;
2️⃣ One witness must be a medical practitioner or a person authorised to witness the signing of an affidavit, such as a lawyer;
3️⃣ Each witness must sign a certificate containing information required by the legislation.
This includes a statement that the principal has signed the enduring power of attorney freely and voluntarily in the presence of the witness and appears to have decision-making capacity;
4️⃣ Each Attorney must sign and date a statement of acceptance in the appropriate form for the Enduring Power of Attorney to be valid; and
5️⃣ The Attorney must keep accurate records of all dealings and transactions made pursuant to the Enduring Power of Attorney (EPOA).
The prescribed form for the VIC Enduring Power of Attorney (EPOA) notes that a Power of Attorney cannot be used for health decisions.
No, registration with the Titles Office is not essential.
➲ In order for your Attorney to sell, mortgage, lease more than 3 years, or otherwise deal with your real estate registration with the VIC Titles Office is required.
It is advisable to register your POA or EPOA so that it is:
➲ On record as a public document;
➲ Safe from loss or destruction; and
➲ More easily accepted as evidence that your Attorney is allowed to deal with your legal + financial affairs.
After you have signed a General (Non-Enduring) Power of Attorney you still continue to have the authority to deal with your own legal + financial affairs as long as you retain decision-making capacity.
It is at the point of time when you lose your decision-making capacity where the crucial difference between the three types of Power of Attorney becomes apparent.
Important: Once you have lost your decision-making capacity you have no ability to create another Power of Attorney or any other legal document.
The question of decision-making capacity is a complex one.
Once decision-making capacity is lost there is still potential it might return, but it is also possible it may not.
Various permutations of these documents are available and the appropriate form will depend upon your individual circumstances and preferences.
Ideally you will conduct your Estate Planning at a time when there is no question regarding your decision-making capacity.
This ensures that in case of something unforeseen happening to you ➲ i.e., a stroke or accident; there will be at least one other person who can quickly + easily look after your money + property.
If not already in place, an Enduring Power of Attorney (EPOA) + other Estate Planning documents can be organised as soon as possible after signs/diagnosis of dementia (this is strongly advised).
If you are a member of a Self-Managed Super Fund (SMSF) and proceed to and lose your legal decision making capacity you will encounter expensive and complex legal issues if you don't have an EPOA already in place.
The Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) allows an Enduring Power of Attorney (EPOA) to act on behalf of a member.
Note: Fees will apply which will be paid on your behalf using your money. As you would have lost your decision-making capacity you would not be able to do this yourself and would have no control over the process or who is appointed.
In Victoria, separation or divorce does not automatically revoke an existing Enduring Power of Attorney (EPOA).
If your Attorney does not follow your directions or does not act in your best interest, you should revoke the Power of Attorney.
You or someone on your behalf must take reasonable steps to inform the Attorney of the revocation, preferably in writing.
The Attorney must then immediately cease to act as your Attorney.
Important: Ask your Attorney to return the Power of Attorney document to make sure that they do not continue to act as your Attorney.
If anyone else, such as a bank, has been advised about the Power of Attorney, that person or entity should also be informed of the revocation.
Note: In Victoria, making a new Enduring Power of Attorney (EPOA) unless specified otherwise automatically revokes an earlier Enduring Power of Attorney.
You can also formally revoke your Enduring Power of Attorney (EPOA) by completing the Revocation of Enduring Power of Attorney form.
In order to formally revoke your Enduring Power of Attorney (EPOA) you must sign the revocation form in front of two adult witnesses:
1️⃣ Someone authorised to witness affidavits; and
2️⃣ A Medical Practitioner (medical doctor).
If the Enduring Power of Attorney has been registered with the VIC Titles Office it will need to be deregistered.
The legislation governing instruments creating Enduring Powers of Attorney (EPOA) in Victoria is:
➲ The Powers of Attorney Act 2014 (VIC); and
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Ensure you are able to keep your Pet/s with you [as long as possible] by providing specific written directions ahead of time and including financial provision for the support of yourself, your Pet/s long-term care, maintenance, health + pet insurance + potentially your Pet/s carer in your Enduring Power of Attorney [EPOA] / NT Advance Person Plan.
Think of setting up an informal arrangement with the RSPCA as a back-up plan just in case for some reason your friends or family circumstances change and they are no longer in a suitable position to take on the responsibility for long-term care of your Pet/s.
For a more detailed discussion please refer to our blog article “Care Planning for your Furry, Fluffy or Fine-Feathered Pets" by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.