Powers of Attorney and Medical Decision Makers

Losing capacity, even temporarily, is more common than people plan for. An accident, a stroke, an illness or simply age can leave someone unable to sign, decide or instruct. Without the right document in place beforehand, the people closest to you have no authority to act, and the alternative is an application to VCAT for an administrator or a guardian.

These are not difficult documents to prepare. They are easy to prepare badly, and the cost of a badly drafted one is only discovered at the point where it is needed and cannot be fixed.

They are separate documents, and they do different things

Victoria uses more than one instrument, under more than one Act, and the names are easily confused.

• Enduring power of attorney. Made under the Powers of Attorney Act 2014 (Vic). It continues after you lose capacity, which is the whole point of it. It can cover financial matters, personal matters, or both. Financial means money, property and business decisions. Personal means matters such as where you live, who you live with, and day to day lifestyle decisions.
• General power of attorney. Also under the same Act, but it does not endure: it ends if you lose capacity. It covers financial matters. It is the right document for a defined job or a defined period, such as a settlement you cannot attend, a period overseas, or running one part of your affairs for a time. It can be limited to a single transaction.
• Medical treatment decision maker. A separate appointment under the Medical Treatment Planning and Decisions Act 2016 (Vic). A financial power of attorney does not reach medical decisions in Victoria, so this is the document that appoints who decides on treatment if you cannot. You can appoint more than one person, in order.
• Supportive attorney appointment. For someone who still has capacity but needs help gathering information, communicating and giving effect to their own decisions. It is under-used, and it is sometimes the more appropriate document where the concern is support rather than substitution.

Most clients end up with an enduring power of attorney and a medical treatment decision maker appointment. Couples usually do mirror documents, appointing each other first and a child or sibling as the substitute.

What an attorney can and cannot do

An attorney acts for you, within the authority the document gives them, and subject to duties the Act imposes. They must act honestly, keep their own money separate from yours, and keep records. They are not free to do as they think best.

Some things an attorney cannot do at all. They cannot make or change your will, and they cannot vote for you or consent to a marriage on your behalf. Transactions where the attorney stands on both sides, such as a transfer to the attorney or to a company the attorney controls, need to be expressly authorised in the document, or they are not permitted.

The document you sign decides how much room your attorney has. That is a drafting question, and it is worth answering deliberately rather than accepting whatever a template says.

Where it meets your structures

For clients with a trust, a company or a self managed fund, the power of attorney is not just a personal document. It is part of whether those structures keep working.

• Self managed funds. Where a member loses capacity, an enduring power of attorney is generally what allows an attorney to step into the trustee or director role and keep the fund compliant. Without one, the fund has a problem with a deadline attached.
• Family trusts. Whether an attorney can act for you as trustee or appointor depends on the deed. Some deeds say so expressly, some are silent, and some prevent it. This is worth checking while the deed can still be varied.
• Companies. A directorship is personal and does not pass to your attorney. Where a company matters to the family's income, who can be appointed a director, and by whom, needs to be worked out in advance.

What we do

• Work out which documents you actually need, rather than preparing all of them by default.
• Draft the enduring power of attorney, general power of attorney, medical treatment decision maker appointment or supportive attorney appointment, with any conditions or limits you want in them.
• Prepare mirror documents for couples in the one piece of work.
• Check the interaction with your trust deed, your fund deed and your company, and tell you where a structure needs attention as well.
• Deal with the signing and witnessing requirements, which differ between the documents and are where home-made versions usually fail.
• Review and replace documents that are out of date, and prepare a revocation where one is needed.

Fees are fixed and quoted in writing before the work starts.

This page is general information. It is not legal advice, and the right documents depend on your circumstances.