Legal Insights

The new Powers of Attorney in Victoria

By Julia Tonkin

• 01 September 2015 • 2 min read
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The Powers of Attorney Act 2014 (Vic) came into effect on 1 September 2015

On 1 September 2015, the Powers of Attorney Act 2014 (Vic) came into effect, changing the way Victorians create and execute Enduring Power of Attorney documents.

The president of the Victorian Civil and Administrative Tribunal, Greg Garde (in an address at the Law Institute of Victoria on 31 August 2015) noted the Powers of Attorney Act 2014 (Vic) signifies one of the most significant pieces of legislative change in Victoria this decade.

As of 1 September 2015, Victorians will no longer be able to create:

  • an Enduring Guardian Appointment
  • an Enduring Power of Attorney (Financial).

A new and consolidated document will be used on and from 1 September 2015, known simply as an Enduring Power of Attorney (EPA).

This document will incorporate the features of the old form Enduring Guardian (which gave the ‘guardian’ power to make lifestyle decisions for the donor) and Enduring Power of Attorney (Financial) (which gave the attorney power to act on behalf of the donor for financial decisions).

An EPA enables the principal (formally referred to as the donor) to confer powers on the enduring attorney for:

  1. financial matters
  2. personal matters
  3. both financial and personal matters,

with personal matters including lifestyle affairs and some legal matters.

The legislation also introduces an entirely new form of appointment known as a Supportive Attorney Appointment (SAA).

An SAA recognises and enhances the independence of individuals with a disability by enabling them to appoint an eligible person of their choosing, to support them in making decisions. This document lapses if the principal loses decision making capacity as the supported decisions made under an SAA are made by the principal and not the supportive attorney. A Supportive Attorney will assist with collecting information, liaising with organisations and conveying a principals decisions to organisations.

Other changes implemented by the Powers of Attorney Act 2014 (Vic) include:

  • a requirement for attorney(s) to disclose offences involving dishonesty
  • changes to the duties imposed upon persons appointed under an Enduring Power of Attorney and Supportive Attorney document
  • more stringent execution requirements
  • a new test of decision making capacity.

Enduring Power of Attorney (Medical Treatment)

The existing format and requirements of an Enduring Power of Attorney for Medical Treatment will be unaffected by the introduction of the Powers of Attorney Act 2014 (Vic) and will continue to be regulated by the Medical Treatment Act 1988 (Vic).

By Julia Tonkin

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