Enduring Power of Attorney
An Enduring Power of Attorney allows you (the Donor) to appoint someone (the Attorney) to decisions on your behalf. The powers to make decisions are very broad, in the areas of financial decisions, legal decisions and personal decisions. You can select different people to make decisions for you in these different areas of your life.
An Enduring Power of Attorney continues to have effect even after you no longer have capacity to make decisions for yourself. Most people put a condition in the Enduring Power of Attorney that it’s not even to begin to have effect until you no longer have capacity yourself. Hence, it applies from the time you lose capacity, until you either die or recover.
What can the Attorney do?
Your Attorney can make any financial, legal and personal decisions that you can legally make for yourself, unless you restrict them. For example, you can restrict their ability to deal with your residential home or invest in unethical investments.
Your Attorney must act in your best interests at all times; they must keep accurate records of all dealings and transactions; and avoid situations which could give rise to a conflict of interest between you and themselves. Your Attorney must always keep your property and money separate from their own.
In addition to settling limits or conditions on your Attorney, you can also give them greater powers. For example, you will probably want them to be able to maintain your dependants, if you have minor children. You may also wish your Attorney to continue to donate to a charity on your behalf or buy birthday presents for your grandchildren. These directions need to be included in your Enduring Power of Attorney, because they would otherwise be contrary to your Attorney acting purely in your best interest.
Why make a Power of Attorney?
Making a Power of Attorney gives you the control to appoint someone who you trust to manage your finances. If you lose the mental capacity to make decisions for yourself and you have not appointed someone to act on your behalf, then someone (not of your choosing) can be appointed by VCAT as your administrator. This person could be a family member, or could be the State Trustees.
Appointing an Attorney also provides you with continuity in the management of your financial and legal affairs, and minimising any hardship and problems that your family may face in between your accident or diagnosis and actually getting a VCAT order. It also enables you to maintain a level of confidentiality of your affairs, instead of having their aired in VCAT.
When does the Enduring Power of Attorney start?
You get to decide when the Power of Attorney starts. As mentioned above, you may not want it to begin immediately, so you can put a condition on it about when it starts:
- upon incapacity – your Attorney will only be able to act on your behalf if a doctor provides a medical certificate or report that you can no longer make decisions for yourself
- on a specific date, or
- at such other time as nominated by you in the document.
Does it need to be registered?
No. In Victoria, registration of the Enduring Power of Attorney is not required. However, if you have assets in Queensland or New South Wales, it may have to be registered in those States to be able to deal with deal estate.