VIC Supportive Power of Attorney

Victoria

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How do you get Power of Attorney in Victoria?

In Victoria there are three types of Power of Attorney:

1️⃣  General (Non-Enduring) Power of Attorney (POA) [publicly available for free ➲ download here];

2️⃣  Enduring Power of Attorney (EPOA); and

3️⃣  Supportive Power of Attorney (SPOA).

What is a Supporting Power of Attorney (SPOA)?

Under the new Powers of Attorney Act 2014 (Vic), a person (which includes a child) who has decision-making capacity can appoint an Attorney to support them in making decisions (called a “Supportive Power of Attorney (SPOA)”).

The Supportive Power of Attorney (SPOA) can be limited to assisting with financial or personal matters or both, or for a specific purpose.

It is different to the General Power of Attorney (POA) because a Supportive Power of Attorney (SPOA) cannot make decisions on your behalf.

Once you lose decision-making capacity, the power automatically ends.

The types of help the Attorney can provide are determined by you (the Principal) and include one or a combination of:

1️⃣  Communication Powers ➲ these enable your attorney to communicate with organisations, such as banks and supplier companies on your behalf;

2️⃣  Information-Gathering Powers ➲ these enable your attorney to access information or assist you to access information that is relevant to the decision(s) they are helping you make; and

3️⃣  Power to Give Effect to Decisions ➲ these powers include anything that is reasonable to make sure your decisions are carried out in accordance with your wishes.

Important: Supportive Powers of Attorney (SPOA) cannot (even with your consent):

➲ Assist you in real estate transactions, or

➲ Assist you to enter into a financial transaction over $10,000.

Attorneys who assist you in these ways are breaking the law and can face criminal charges and financial penalties.

A person appointed as Supportive Attorney to assist with financial decisions must not be insolvent and must disclose to you any convictions of an offence involving dishonesty.

How is a Supporting Attorney appointed?

To appoint one Supportive Attorney, you can use the Short-form [publicly available for free ➲ download here]; or

To appoint more than one Supportive Attorney you can use the Long-form [publicly available for free ➲ download here].

Both a General Power of Attorney (POA) + Supportive Power of Attorney (SPOA) automatically cease if you lose your decision-making capacity after their execution.

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).

Who can you appoint as your Supportive Attorney/s?

You need to consider that a Supportive Attorney will have enormous influence over your financial + legal affairs.

You can appoint anyone who will agree to take on the responsibility.

You should choose a person whom you can trust and who will help you manage your finances in a responsible way.

Usually one or more family members or close friends are appointed as Supportive Powers of Attorney (SPOA), alternatively you may prefer to approach the State Trustees VIC or a private trustee company or lawyer to act as your Supportive Attorney, but fees will apply.

Does a lawyer need to be involved in witnessing my SPOA?

No. In Victoria, you must use the prescribed SPOA form and sign in the presence of two independent witnesses, one of whom must be a person authorised by law to take statutory declarations.

Neither witnesses can be the person(s) appointed as your Supportive Attorney or related to those persons or related to you.

If you are unable to sign the SPOA because you are physically unable to do so, you can direct another person to complete and sign the SPOA for you (this person cannot be a witness).

The other person must sign on your behalf in front of you and two witnesses, who must also sign the SPOA.

Witnesses to a Supportive Attorney must state that you appeared to sign freely and voluntarily in their presence and that you appeared to have capacity to understand your decision.

The person(s) you appoint as Supportive Attorney must accept the appointment by signing the prescribed forms in the presence of two independent witnesses.

You may set whatever conditions and limitations on your Attorney that you choose.

An Attorney must always act in your best interest.

Who can grant a SPOA?

In order to be able to grant a Supportive Power of Attorney (SPOA) you must:

1️⃣ Be a person (which includes a child); and

2️⃣ Have decision-making capacity in relation to making the Supportive Power of Attorney.

Decision Making Capacity

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.

Do I need to get legal advice before I sign my SPOA?

No. A Supportive Power of Attorney does not involve you giving away your decision-making power.

Therefore, legal advice is optional before you sign it.

Do I have to register my Supportive Power of Attorney (SPOA)?

No, registration is not required.

POA/SPOA v. EPOA

After you have signed a Power of Attorney (POA) 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 (POA) becomes apparent.

Important: Once you have lost your decision-making capacity you have no ability to create another Power of Attorney (POA) 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.

In an abundance of caution ➲ EPOA + Advance Care Directive / Medical Treatment Decision Maker / Support Person etc. are all strongly recommended

We recommended that as part of your Estate Planning process, both an EPOA + an Advance Care Directive / Medical Treatment Decision Maker / Support Person

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).

What happens if you lose decision-making capacity + you don't have an EPOA?

A special application for administration orders would need to be made to the VIC Civil + Administrative Tribunal [VCAT] to appoint someone as your administrator.

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.

Revocation of Supportive Power of Attorney

If your Supportive Attorney does not follow your directions or does not act in your best interest, you should revoke the Supportive Power of Attorney (SPOA).

The Supportive Attorney must then immediately cease to act as your Supportive Attorney.

Important: Ask your Attorney to return the Supportive Power of Attorney (SPOA) document to make sure that they do not continue to act as your Supportive Attorney.

If anyone else, such as a bank, has been advised about the Supportive Power of Attorney (SPOA), that person or entity should also be informed of the revocation.

Note: In Victoria, making a new Supportive Power of Attorney (SPOA) unless specified otherwise automatically revokes an earlier Supportive Power of Attorney.

You can also formally revoke your Supportive Power of Attorney (SPOA) by completing the Revocation of Supportive Power of Attorney form.

In order to formally revoke your Supportive Power of Attorney (SPOA) you must sign the revocation form in front of one witness authorised by law to witness statutory declarations.

The witness must also not be:

➲ A relative of yours;

➲ A relative of the Supportive Attorney under the appointment;

➲ A care worker or an accommodation provider to you;

➲ A person signing at your direction; or

➲ A Supportive Attorney under the appointment.

Enabling VIC Legislation

The legislation governing instruments creating Enduring Powers of Attorney (EPOA) in Victoria is:

➲ The Powers of Attorney Act 2014 (VIC); and

➲ The Powers of Attorney Regulations 2015 (VIC).

Optional Extras:

➲ 💡 Trax Print Fraud + Litigation Prevention Technology $22.

Safe Storage: 

🔒  The Victorian Will + Power of Attorney Registry
[Anyone in Victoria can register information about where they keep their Will + Power of Attorney (POA) documents at no charge. There is also the option to physically store originals for free].

Free Downloadable Booklet provided by the Office of the Public Advocate VIC:

➲  Side by Side: A guide for people wanting support to make decisions

Social Sharing Image: Courtesy of AbsolutVision on Unsplash

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