New Powers of Attorney

by Jacqui Brauman

The new Victorian Power of Attorney Act is due to start on 1 September 2015. It doesn’t make any changes to the Enduring Power of Attorney (Medical Treatment), but it will change the other two enduring powers: Enduring Power of Attorney (Financial) and Enduring Guardianship.

mother and daughterDon’t worry if you have these documents already – they will still be valid.

I wrote an article on this some time ago, if you would like to revisit it.

There are a couple of changes that are being introduced that we not effect the majority of people preparing their powers of attorney. For example, there is the creation of a new role of “supportive guardian” for someone who is physically disabled and want someone to do tasks for them that they couldn’t otherwise do. Another change is that “capacity” is finally defined, and although this has been an important concept for a long time it has never been clearly defined in relevant legislation.

Another important change, given the recent celebration of World Elder Abuse Awareness Day, is that some offences are created in this two legislation to protect the person giving the power of attorney. The first offence created is one of dishonestly obtaining the power of attorney in the first place. The second and more important offence is when the attorney dishonestly obtains a financial gain from the person whom they are supposed to be acting for.

VCAT is also given broader powers to order an attorney to compensate the principle for any loss they cause by contravening their role as attorney. This is very important, because currently there is very little that can be done if an elderly family member is taken advantage of.

The standards are increasing for who can witness a power of attorney, which will probably help with some of the protections for the elderly. Instead of a witness being someone who can witness a statutory declaration, it is increasing to a witness who can witness an affidavit.

New forms will soon be developed, and more information will be available through the Office of the Public Advocate. Or you can contact us for advice.

Posted in Estate Planning, Succession Planning.

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