What is a power of attorney?
A power of attorney is a legal document authorising a person (your attorney) to act on your behalf. Appointing a power of attorney allows someone you trust to control your affairs when you are no longer in a position to do so. You should discuss your options with your lawyer as this is a position of great responsibility and careful thought should be given to whom you appoint. There are a number of reasons to appoint a power of attorney.

• You may be going overseas.
• You may require hospitalisation and need someone to look after your financial or legal affairs.
• Dementia or mental illness may inhibit your decision making ability.

Appointing an attorney
There are several types of power of attorney, the most common being:

• a general power of attorney;
• an enduring power of attorney (financial);
• an enduring power of attorney (medical treatment); and
• an enduring power of guardianship.

When appointing a power of attorney the donor is the person who gives the power of attorney to another. The donee or attorney is the person who is given the power of attorney. Generally speaking, for a power of attorney to be valid the donor must be over 18 and understand:
the nature of the document they are signing;

• what powers are being granted to the attorney;
• what powers the donor is retaining; and
• the options to cancel or change their attorney.

The attorney (or donee) must be over 18 and agree to be your attorney.

• They must have legal capacity.
• They should be someone you trust.
• They should be someone who would look after you and your affairs the way you would look after them yourself.

General power of attorney
A general power of attorney authorises a person to act on your behalf in limited circumstances. The scope of this authority and the duration of its effect depend on the terms of the power.
For example, you could grant a general power of attorney to:

• sell your house for a specific figure;
• operate your bank account;
• give someone control of all your business affairs; or
• act on your behalf while you are overseas or in hospital.

A general power of attorney can specify when and in what circumstances it will operate, and will cease on completion of those circumstances (e.g. the sale of a house) or when the donor withdraws it, preferably in writing.
A general power of attorney ceases immediately when a donor dies, becomes bankrupt or becomes mentally or physically incapable of running their affairs.

Formal Requirements
A power of attorney needs to be in writing and made by a person over 18 years of age who is able to understand the nature of the power of attorney.

• Documents signed by your attorney on your behalf will include a note stating they sign in their capacity as your power of attorney.
• The attorney must keep accurate records of all dealings and transactions made pursuant to the power of attorney.
• Powers of attorney should be kept in a safe place such as a lawyer's office or a bank.
• You and your attorney should keep copies of your power of attorney.

Enduring power of attorney (financial)
An enduring power of attorney (financial) authorises the attorney to make financial and legal decisions on your behalf. An enduring power of attorney differs from a general power of attorney in that the authority to act on your behalf does not cease if you become physically or mentally incapable of managing your own affairs. It is enduring unless revoked in writing.
Many elderly people grant enduring powers of attorney to deal with situations where dementia or a medical condition inhibits their ability to control their own affairs.

A donor can make an enduring power of attorney only if they understand its nature and effect, including:

• the donor's ability to specify conditions, limitations, or provide instruction concerning the use of the power;
• when the power is exercisable;
• the effect of exercising this power;
• the ability to revoke the power at any time when the donor has capacity to make an enduring power of attorney; and
• any time the donor is not capable of revoking the power, they will also be unable to effectively oversee the use of the power.

Formal Requirements
An enduring power of attorney must be in the approved written form and comply with requirements outlined in the Instruments Act 1958 (Vic).

• The enduring power of attorney form must be signed and dated by two adult witnesses in the presence of each other and the donor.
• One witness must be authorised to witness the signing of a statutory declaration, such as a lawyer.
• Each witness must sign certificates containing information required by the legislation. This includes a statement that the donor has signed the enduring power of attorney freely and voluntarily in the presence of the witness and has the necessary capacity to understand the enduring power of attorney.
• The enduring power of attorney is only effective once the attorney has accepted the appointment.
• A statement of acceptance in the appropriate form needs to be signed by the attorney.
• The attorney must keep accurate records of all dealings and transactions made pursuant to the enduring power of attorney.

Enduring power of attorney (medical treatment)
An enduring power of attorney (medical treatment) gives the agent (attorney) you appoint authority to make decisions about medical treatment on your behalf if you become incompetent through ageing, mental or physical illness or injury. The authority only becomes effective if you become legally incompetent, that is, unable to make decisions on your own behalf.

An agent can be a family member, friend or professional person. You cannot appoint two people jointly. You can however appoint an alternative agent should your original agent die, become incompetent or cannot be contacted.

Be aware that the agent you appoint will be able to make decisions about refusing medical treatment on your behalf if you become incompetent.

• Your agent can only refuse medical treatment on your behalf if they believe it would cause unreasonable distress; or
• If there were reasonable grounds for believing if you were competent you would have considered the treatment unwarranted.

An enduring power of attorney (medical treatment) does not empower an agent to arrange euthanasia or refuse palliative care. There are safeguards to protect you if the agent acts improperly. For example, before making any decision the agent must discuss your condition with your doctor.

Formal Requirements
Two independent witnesses must witness the enduring power of attorney document.

• One witness must be a person authorised to take statutory declarations, such as a legal practitioner or a doctor.
• Both witnesses must be satisfied the agent has received and understood sufficient information to make a decision.
• The agent must keep accurate records of all dealings and transactions made pursuant to the enduring power of attorney.

Refusal of medical treatment
For a refusal of medical treatment to be effective:

• the agent must sign a refusal of treatment certificate;
• two witnesses must sign the refusal of treatment certificate;
• these witnesses must not have witnessed the enduring power of attorney; and
• one of the witnesses has to be a medical practitioner.

Enduring power of guardianship
An enduring power of guardianship enables the appointment of a sole guardian who can make personal, lifestyle and medical treatment decisions for the donor in the event of their incapacity. The authority of the enduring guardian depends on the specific powers and limitations set by the donor. If the donor does not set any specific powers or limitations, the enduring guardian has all the powers of a plenary (complete) guardian. Enduring powers of guardianship tend to have added relevance to people living alone, or where friends or family are in dispute about the future care arrangements of a loved one.

An enduring power of guardianship does not give the guardian the power to consent to any procedure or to refuse medical treatment. The guardian must exercise their authority in the best interests of the donor.

A proposed guardian cannot be someone professionally involved in the care or medical treatment of the donor or professionally involved with their accommodation. If a guardian becomes involved in either of these two areas the enduring guardianship will lapse. You cannot appoint two joint guardians. You can however appoint an alternative guardian should your original guardian die, become incompetent or cannot be contacted.

Formal requirements
For an enduring power of guardianship to be valid both the donor and the guardian must be over 18 years old. The document must be in the form provided in the Guardianship and Administration Act 1986 (Vic).

• Two independent witnesses must witness the enduring power of attorney guardianship document.
• Neither witness can be a party to the guardianship or be a relative of a party to the document.
• One witness must be a person authorised to take statutory declarations, such as a lawyer.
• A statement of acceptance in the appropriate form needs to be signed by the guardian.

Revoking a power of attorney
Powers of attorney and enduring powers of attorney can be withdrawn by signing a revocation of power of attorney form. You can also revoke an enduring power of attorney (medical treatment) by executing a subsequent enduring power of attorney under the Medical Treatment Act 1988 (Vic). The actual power of attorney document and any existing copies should be collected from the attorney and destroyed to prevent any further use.
Give your attorney a copy of the revocation of power of attorney form.

Anyone who believes your attorney is not acting in your interests can apply to the Victorian Civil and Administrative Tribunal (VCAT) to revoke the authority, if it finds it is no longer in the best interests of the donor. Applications to dispute the refusal of medical treatment should be made to the Guardian and Administration List of VCAT.
What a lawyer can do for you

• Advise on whether or not a power of attorney could assist in your circumstances.
• Draft a document that meets your particular needs and legal requirements.
• Advise you on the implications of the types of powers of attorney.
• Review an existing enduring power of attorney.
• Advise on the powers of the donor and the attorney.
• Act for you in a legal matter.

Arrange a consultation with an experienced solicitor.

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