An enduring power of attorney is a legal document that allows a person or people (the attorney/s) to make decisions for another person (the principle). As opposed to general powers of attorney, which have limitation periods, ‘enduring’ powers continue.
Provided a medical attorney has not been appointed, an enduring power of attorney can consent to medical treatment. However, they do not have the power to refuse treatment.
Who to Appoint
When appointing an attorney, a principle should be confident that the person they select will protect their interests when making decisions and welcome their participation.
A person can only be appointed as an attorney if they:
- are 18 years of age or over;
- are not insolvent under administration;
- have not been convicted of an offence involving dishonesty; and
- are not a care worker, a health provider or accommodation provider.
It is important to understand that the person appointed will have the same power that the principle would ordinarily have in relation to a specific matter. However, conditions can be placed on the power given. Provided the principle has decision making capacity; the power of attorney can also be revoked at any time. However, until such time that the principle is capable of making decisions, the enduring power of attorney will remain in place.
Importantly, unless a principle has consented, an attorney cannot be paid for carrying out their duties.
An enduring power of attorney may make decisions in relation to financial and/or personal matters. The principle may limit the powers of an attorney by specifying the decisions they can and cannot make.
Financial matters might include making funds available, paying debts and expenses, carrying on a business, maintaining property, discharging mortgages or making investments. Legal matters that relate to finances and property can also be included.
Personal matters can include where and with whom the principle lives, where they work, the kind of education they might undertake or their daily living issues such as food and clothing.
Appointing More than One Attorney
A person may appoint more than one attorney and specify who will carry out particular duties. Those appointed can act:
The attorneys make decisions together.
The attorneys make decisons independently.
- Jointly and Severally; or
Depending on the matter, the attorneys decide together or independently.
- By majority
In order for a desicion to be reached, a majoruty must agree.
Commencing, Ending and Cancelling
A principle may specify when the power of attorney will commence. This could be immediately, when the person no longer has decision making capacity or at any other time they request.
Provided the principle has decision making capacity, they can revoke an enduring power of attorney at any time. If the principle dies, the enduring power of attorney will end.
Decision Making Capacity
Under the Powers of Attorney Act 2014 (Victoria) a person is able to decide on matters if they:
- can understand the information relevant to the decision and can understand the effect of the decision;
- can retain the information to the extent necessary to make the decision;
- can weigh the information for the purposes of making the decision; and
- can communicate the decision and their views in some way. This can be by speech, gestures or other means.
Upon assessment however, it is important to take into account the following:
- The person may be capable of deciding on some matters but not others;
- Where there is no decision making capacity, it may be temporary and not permanent;
- The person’s appearance should not be a factor;
- The person’s opinions should not be a factor, irrespective of whether they are thought to be unwise;
- When provided with the right support, the person may be capable of making decisions. For example, they may require additional time or assistance in communicating.
An attorney must follow strict guidelines when carrying out duties for the principle. The Powers of Attorney Act 2014 (Victoria) lists the following conditions:
- The attorney should not restrict the principle’s ability to make decisions;
- Encouragement and support should be provided to the principle to participate in decision-making;
- Where practicable, an attorney must follow the principle’s wishes;
- The personal and social well-being of the principle should be promoted by considering their dignity, existing relationships, religion, values and culture;
- The attorney should respect the principle’s confidential information
There are certain matters that are outside the powers of an attorney. They cannot carry out the following on behalf of the principle:
- Decide on the welfare of their children;
- Make (or revoke) a will
- Make (or revoke) an enduring power;
- Consent to marriage or divorce;
- Consent to a sexual relationship;
- Decide on the adoption of a child;
- Consent to an unlawful act; or
- Enter into surrogacy arrangements