Guide for an Enduring Power of Attorney in Victora
What is Enduring Power of Attorney?
Enduring Power of Attorney (EPOA) is a powerful legal document which someone (Principal) authorize another person (attorney) to make decisions about their finance and personal affairs on their behalf, as directed by the principal (immediately or when the principal lost his/her capacity). The role of the attorney is only valid when the principal person is alive. If the principal dies, the attorney ‘s power ceases.
Losing a capacity refers to the inability to make informed decision due to an illness, injury or condition that affects mental functions.
In Victoria, Enduring Power of Attorney does not cover medical treatment decision making. You must execute an Appointment of Medical Decision Maker and Advance Care directive, to authorize someone to take decision regarding your medical treatments, when you lose your capacity or unable to make an informed decision due to an illness /condition.
Why you need an Enduring Power of Attorney?
- Protection against unexpected incapacity
No one expects to lose their decision-making abilities, but a sudden accident or incident or medical emergency or medical conditions due to the age, could be change things instantly.
If you have a valid EPOA, your attorney could immediately step into your personal and financial affairs, including managing your bank accounts & pay bills, liaise with institutions (like Centrelink / insurance companies), take decisions about your wellbeing (where you live, how to care for you etc.) and handle your real estate properties, on your behalf.
- Avoiding Government or Court intervention
If you lost ability to make a legitimate decision about your wellbeing, finance or property without an EPOA in Victoria, your family does not automatically have the legal rights to manage your financial or personal affairs. Instead, they have to deal with stressful & costly procedure to appoint a legal decision maker through Victorian Civil and Administrative Tribunal (VCAT). If no suitable or willing family member or friend is available, VCAT may appoint an independent professional or public body like State Trustees to manage your personal affairs.
- Preventing family conflicts
In absence of an EPOA, family members may disagree on handling your financial & personal affairs. By proactively choosing your attorney/s and laying out explicit instructions, you eliminate ambiguity and prevent family disputes before it commences.
- Maintaining Control & dignity
Setting up an EPOA, you will guide your attorneys to handle your personal and financial affairs, as you wish. You could mention what attorneys could do & couldn’t with their roles.
Appointing Attorneys
An attorney can be a family member or friend or someone else that the principal trusts or an occupant of a position. An attorney must be 18 years of age or older and cannot be an insolvent under administration.
The principal cannot appoint their care worker, health provider, or accommodation provider as their attorney.
For financial matters, the principal can appoint a trustee company. If the person who will be their attorney for financial matters has been convicted or found guilty of an offence involving dishonesty (e.g. theft), they have to tell the principal about it and have it recorded in the enduring power of attorney.
The principal) can appoint a single attorney or several attorneys jointly or severally, to manage personal and financial affairs. Also, the principal can appoint an alternative attorney(s)) to be a back-up for your attorney(s), in case your attorney(s) is unable or unwilling to act.
We recommend appointing a trusted person as your attorney, with their informed consent. They should understand their role, responsibilities, power and your wishes to fulfill their duties.
Limitations
The principal may direct any limitations and commencement time for the EPOA, before it’s execution.
We recommend to seek a professional advice, if you wish to insert any limitations for your attorney or before execute an EPOA, without any limitations, to understand its legal consequences.
Execution of Enduring Power of Attorney
The principal must sign the EPOA before statutory Witness (including a Legal Practitioner) and an adult witness, at the same time, before each other, in Victoria. Any of appointed attorneys or relative of either principal /Attorney or care worker/ accommodation provider of Principal cannot be a witness for the EPOA.
Further, each attorney must accept their appointment and sign before an adult witness in Victoria to execute the EPOA. EPOA is not valid until complete the acceptances under the prescribed law.
Revocations & Alternations of Enduring Power of Attorney
The principal could revoke the EPOA or change /remove attorneys, appointed in the EPOA and the Principal must have a decision-making capacity to revoke/alter the Enduring Power of Attorney (EPOA).
Feel free to contact us for more information or assistance via admin@archylegal.com.au or www.archylegal.com.au
