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
- 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.