Power of Attorney (POA) Lawyer In Melbourne & Victoria
If you need to give someone legal authority to make decisions on your behalf, you will need to create a power of attorney.
What is 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.
When Is a Power of Attorney Used?
A Power of Attorney is used in various circumstances including:
- When someone is traveling overseas or is absent for an extended period of time and needs someone to make legal decisions or manage their finances while they are absent
- If someone has health concerns and wants to ensure that someone they trust can make decisions regarding their financial and personal affairs or medical treatment
- As someone ages, they may want to put arrangements in place for someone to handle their affairs if they become unable to do so themselves due to illness or incapacity
- If someone wants to plan for the future where they may not be able to make their own decisions due to unexpected events or health decline.
- If a person can make their own decisions but needs support in giving effect to those decisions (such as dealing with relevant documents), they can appoint a Supportive Attorney.
Types of Power of Attorney
In Victoria, there a three main types of Power of Attorney:
General 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.
Enduring Power of Attorney
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:
Financial Decisions
Personal 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.
Medical Treatment Decision Maker Appointment
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.
How to Get Power of Attorney in Victoria?
To get a Power of Attorney in Victoria, you will typically need to go through the following process:
- Decide on the Type of Power of Attorney you wish to grant
- Choose the person or persons you trust to act as your attorney or decision maker
- Prepare the Power of Attorney document
- Sign and Witness the Document in front of witnesses (witness requirements depend on the type of Power of Attorney)
Signing Requirements
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.
Storage
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.
Do You Need a Lawyer to Get a Power of Attorney In Victoria?
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.
Common Issues That Can Occur With Powers of Attorney
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:
- Misunderstandings of the Role: Sometimes, the person appointed as the attorney may not fully understand their role and responsibilities, and the fact that they need to act in the principal’s best interests, not make decisions based on what they personally believe to be right.
- Financial Abuse: Unfortunately, there can be instances where an attorney may misuse their position and engage in financial abuse, which can involve misappropriation of the principal’s money, property, or other assets for their own benefit.
- Disputes Among Family Members: In instances where there are multiple attorneys, or if not all family members agree with the choice of attorney, conflicts can arise. This can lead to legal disputes that require resolution in the Victorian Civil and Administrative Tribunal (VCAT) or the courts.
- Validity of the Document: If the Power of Attorney document is not correctly completed and executed, its validity can be challenged. This might happen, for example, if it was not properly witnessed or if there is a question about the principal’s capacity at the time it was made.
- Confusion Over Types of Powers: Sometimes there can be confusion over the types of decisions an attorney has the right to make. For example, an attorney under a General Power of Attorney or an Enduring Power of Attorney does not have the authority to make medical decisions.
- Revoking a Power of Attorney: Issues can arise if the principal wants to revoke the Power of Attorney but the attorney disputes whether the principal has the capacity to do so.
- The Principal’s Capacity: Sometimes disputes can arise about whether the principal had the mental capacity to understand the effect of creating the Power of Attorney at the time it was made.
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.
How Our Lawyers Can Help You With Your Power of Attorney
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:
- Guide you through the process and make sure that you are making the best decisions for your specific situation, including advice about when a Power of Attorney might be appropriate, who should be appointed and what powers should be granted.
- Help you to understand all the legal jargon contained in the documents you are required to sign, ensuring you understand all the implications of what you are signing
- Ensure that all formalities are met to make the Power of Attorney legally valid. If this is not done correctly, the Power of Attorney can be challenged at a later date.
- Avoid any mistakes that could potentially render the Power of Attorney invalid or dispute its legitimacy.
- Assist in drafting the document to cover a variety of scenarios tailored to your particular needs and wishes
- Explain the potential risks of granting Power of Attorney and how to mitigate them
Address any questions about your Powers of Attorney - Guide you in choosing an appropriate attorney, discussing the qualities to look for, such as trustworthiness, reliability, financial acumen, and understanding of your wishes
- Provide advice on conflict resolution if disputes arise among family members or between the principal and attorney, and represent you in any legal proceedings
Help you to revoke your Power of Attorney if you decide to do so - Ensure safe storage of the original Power of Attorney in a secure location and provide copies as required
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.
We Are Able to Assist You In the Following Areas Relating to Powers of Attorney:
- General Power of Attorney
- Enduring Power of Attorney
- Medical Treatment Decision Maker Appointment
- VCAT (Victorian Civil & Administrative Tribunal) representation and advice on Power of Attorney, Guardianship and Administration applications and disputes.
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