If you need to give someone legal authority to make decisions on your behalf, you will need to create a power of attorney.
A Power of Attorney is a legal document that gives someone (the attorney) the authority to make decisions on behalf of another person (the principal).
It can be used in a range of situations, from temporary overseas absences to planning for potential incapacity due to age or illness.
The Powers of Attorney Act 2014 (Vic) is the key legislation that governs Powers of Attorney in Victoria.
A Power of Attorney is used in various circumstances including:
In Victoria, there a three main types of Power of Attorney:
A General Power of Attorney is a legal document that gives one or more persons the authority to make financial and legal decisions on behalf of another person.
These are typically used in circumstances where the principal needs someone to manage their financial affairs for a specific period or event.
For example, if the principal is planning to be overseas or unable to manage their affairs for a period of time, they can use a General Power of Attorney to give someone else the power to manage their finances and legal matters during their absence.
The powers granted to the attorney can be broad or limited, depending on the principal’s needs and preferences. They might include the power to operate the principal’s bank accounts, pay the principal’s bills, and buy or sell real estate on the principal’s behalf.
It is important to note that a General Power of Attorney does not give the attorney the power to make personal, lifestyle or medical decisions for the principal, and a General Power of Attorney is not valid if the principal loses their mental capacity to make their own decisions.
An Enduring Power of Attorney is a legal document where one person appoints another person or people to make decisions on their behalf about financial and personal matters. However, medial decisions cannot be made under the Enduring Power of Attorney.
Unlike a General Power of Attorney, an Enduring Power of Attorney remains valid even if the principal loses mental capacity due to illness or injury.
An Enduring Power of Attorney can cover two types of decisions:
This can include decisions about where the principal lives, their healthcare, other personal services, and who they have contact with.
The principal can revoke their Enduring Power of Attorney at any time as long as they still have decision-making capacity. The Powers of Attorney Act 2014 (Vic) provides detailed rules on how an Enduring Power of Attorney can be made and revoked.
The document for making medical treatment decisions on behalf of someone else is known as the Medical Treatment Decision Maker Appointment. It replaces what used to be known as the Enduring Power of Attorney (Medical Treatment).
In the Medical Treatment Decision Maker Appointment, the principal appoints another person to make medical treatment decisions on their behalf in the event they lose capacity to make these decisions themselves. This includes decisions about medical procedures, healthcare, and whether to refuse or consent to treatment.
To get a Power of Attorney in Victoria, you will typically need to go through the following process:
For a General Power of Attorney: It must be signed and witnessed by a person authorized to witness affidavits.
For an Enduring Power of Attorney: It must be signed and witnessed by two adult witnesses. One of the witnesses must either be a medical practitioner or a person authorized to witness affidavits.
For a Medical Treatment Decision Maker Appointment: It must be signed and witnessed by two adult witnesses, one of whom must be a registered medical practitioner.
The original document needs to be stored in a safe place, and you need to provide your attorney or decision maker with a copy.
You may store copies with your bank, financial adviser and/or family members for safe keeping.
No, it is not legally required to have a lawyer to get a Power of Attorney in Victoria. However, it is highly recommended for several reasons.
Creating a Power of Attorney is a significant legal action with important implications, and someone who is inexperienced may not be fully aware of what those implications are.
A lawyer will ensure that all parties involved understand what they are getting into, and that the document is correctly drafted and validly executed. They will also provide valuable advice for your specific circumstances and needs.
A lawyer can also help you to resolve potential issues that can arise, including disputes among family members, questions about your capacity and concerns about the misuse of the Power of Attorney.
They can also draft a Power of Attorney document that better fits your specific needs than the standard document provided by the Victorian Office of the Public Advocate or other legal document providers.
Power of Attorney arrangements, while very effective tools, can present various challenges and issues, particularly if they are not done correctly at the time of creation. Potential problems that can arise include:
Many of these issues can be mitigated with proper planning at the time of creating the Power of Attorney. This is why it is very important to carefully consider all aspects of the Power of Attorney and speak to an estate lawyer who can help to prevent these issues from occurring, or resolve them if they do come up.
If you want to ensure your Power of Attorney is done right, having an experienced lawyer assist you with creating it is a must.
Our team will be there to:
Basically, we are here to assist you with all aspects of your Power of Attorney, ensuring it is legally valid while mitigating the risk of it being challenged at a later date or the possibility of it being abused.
Speak to our team today to get your Power of Attorney matter sorted by clicking the button below:
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