Set to commence on 1 September 2015 after receiving assent, the Powers of Attorney Act 2014 (Vic) (New Act) is the government’s response to an inquiry conducted by the Victorian Parliamentary Law Reform Committee (‘Inquiries into Powers of Attorney’) and recommendations of the Victorian Law Reform Commission (‘Guardianship: Final Report’).
By simplifying Victoria’s powers of attorney laws, it is anticipated that the New Act will encourage Victorians to utilise enduring powers of attorney as a means of managing their personal affairs. The New Act will not impact on the appointment of medical enduring powers of attorney under the Medical Treatment Act 1988, nor will it invalidate powers of attorney already in existence under the Instruments Act and Guardianship Act.
The New Act does the following:
- It consolidates the non-enduring and enduring power of attorney provisions of the Instruments Act 1958 (Vic) (Instruments Act) and enduring powers of guardianship provisions in the Guardianship and Administration Act 1986 (Vic) (Guardianship Act). Part XI (powers of attorney) and Part XIA (enduring powers of attorney) of the Instruments Act are therefore repealed, as are the provisions of the Guardianship Act which facilitate the appointment of enduring guardians.
- It streamlines the process for appointing general and enduring powers of attorney for financial and personal matters, setting out formal requirements for making and revoking these powers and clarifies when the powers will commence.
- It facilitates the appointment of a new ‘supportive attorney,’ that is, a person who can lend their support to a principal (perhaps with an impaired ability) to make and give effect to their decisions. The ‘supportive attorney’ provision recognises the fact that some people may not necessarily need a guardian, just a bit of extra support. As a result, day-to-day decisions can still be made without informal assistance as the principal can stipulate exactly what decisions they may need assistance with. The New Act clarifies the role and obligations of the supportive attorney. For example, it can be revoked at any time, must not be used to aid the principal to perform illegal activity and is also not limited to personal and financial decisions. Help and support may be required in discussing your healthcare requirements or notifying your estate agents of your decision to move.
- It defines ‘decision making capacity,’ providing that a person will have such capacity if they are able to ‘understand the information relevant to the decision and the effect of the decision.’ It clarifies when a person is said to be able to understand the decision relevant to their decision and its effect and provides a list of factors to be considered. For example, it should not be assumed that a person does not have capacity for a matter on the basis of their appearance.
- It provides guidance on matters such as conflict transactions, permitted conflict transactions and whether not an attorney can ‘gift’ a principal’s property.
- It gives VCAT greater protective powers such as the power to authorise and validate conflict transactions and order acting attorneys to compensate principals for any loss they cause in contravening the New Act. Applications can be made by both the principal or the administrator/executor however if the principal is deceased, applications must be made within 6 months of the date of death. VCAT will also be able to refer such matters to the Supreme Court.
- It creates new offences such that it will be an indictable offence punishable by up to 5 years imprisonment to dishonestly obtain an enduring power of attorney, use one to gain a financial advantage or otherwise cause loss to the principal or another individual.
- It sets out a form for general non-enduring power of attorney for s 7 of the New POA Act.
Pointon Partners can provide you with a range of information regarding enduring powers of attorney, including advice on:
- which power is right for you (including the possibility of appointing a supportive attorney)
- why you should appoint an attorney;
- how to appoint an attorney; and
- how to revoke a power of attorney.
If you do need any advice or assistance in this area then please do not hesitate to contact Michael Bishop on 03 9614 7707.