Powers of attorney

They let you to choose who you trust to make decisions for you if you become unable to make decisions for yourself. There are four different powers: three enduring powers and one general power. The type of power determines the types of decisions you can give other people to make for you, and are described below.

Why would I need a power of attorney?

A power of attorney is a legal document that allows you to give another person the legal right to make decisions for you in the event that you lose capacity to make decisions for yourself. Capacity is defined as the ability to reason things out; to understand, retain, believe, evaluate and weigh relevant information. A person may lose capacity to make decisions permanently or temporarily, due to accident or illness.

Enduring powers and general power of attorney. Which one is right for you?

In Victoria, there are four different powers of attorney. There is one general power and three enduring powers. All of the enduring powers give your decision maker the authority to act when you cannot make your own choices.

If you want to choose someone to make decisions for in case you lose capacity to make your own decisions, you need to make one or more enduring powers of attorney. Enduring powers are an option all people should consider because anyone can experience an accident or illness that affects their ability to make decisions.

If you want someone to make financial and legal decisions for you for a limited time when you are unavailable, you need to make a general power of attorney. For example, if you are travelling overseas and need someone to take care of your property and finances while you are away you would have to give your chosen decision maker power of attorney. This means banks and other authorities would follow their instructions. A general power of attorney becomes invalid if you become unable to make your own decisions.

What is an Enduring Power of Guardianship?

Another type of guardianship is an enduring power of guardianship. Anyone can appoint an enduring power of guardianship for themselves by filling in a legal document to appoint someone to make personal and lifestyle decisions for them. An enduring power of guardianship continues (endures) when you are unable to make these types of decisions for yourself.

What kinds of decisions can I give other people the power to make?

The powers of attorney cover different areas of decision-making:

• Enduring Power of Attorney (financial) allows you to choose someone to make financial and legal decisions for you.
• Enduring Power of Attorney (medical treatment) lets you choose someone to make decisions about your medical treatment.
• Enduring Power of Guardianship lets you choose someone who can make lifestyle decisions for you.
• General Power of Attorney allows you to choose someone who will make specified financial and legal decisions for you. This power ceases if you lose the capacity to make your own decisions.

Who can witness statutory declarations in Victoria?

Any of the following people may witness the signing of a statutory declaration:

• a Justice of the Peace or a Bail Justice
• a Notary Public
• a barrister and solicitor of the Supreme Court of Victoria
• a clerk to a barrister and solicitor of the Supreme Court of Victoria
• the Prothonotary or a Deputy Prothonotary of the Supreme Court of Victoria
• the Registrar or Deputy Registrar of the County Court of Victoria
• the Principal Registrar of the Magistrates' Court of Victoria
• a Registrar or Deputy Registrar of the Magistrates' Court of Victoria
• the Registrar of Probates or the Assistant Registrar of Probates
• the Associate to a Judge of the Supreme Court of Victoria or the County Court of Victoria
• the Secretary of a Master of the Supreme Court of Victoria
• a person registered as a Patent Attorney under Part XV of the Patents Act 1952 (Commonwealth)
• a member of the police force
• the Sheriff or Deputy Sheriff
• a member or a former member of either House of the Parliament of Victoria
• a member or a former member of either House of the Parliament of the Commonwealth
• a councillor of a municipality
• a senior officer of a council as defined in Local Government Act 1989
• a registered medical practitioner within the meaning of the Medical Practice Act 1994
• a dentist a veterinary practitioner
• a pharmacist
• a principal in the teaching service
• the manager of a bank
• a member of the Institute of Chartered Accountants in Australia or the Australian Society of Accountants or the National Institute of Accountants
• the secretary of a building society
• a minister of religion authorised to celebrate marriages (not a civil celebrant)
• a person employed under Part 3 of the Public Sector Management and Employment Act 1998 with a classification that is prescribed as a classification for statutory declarations or who holds office in a statutory authority with such a classification, and a fellow of the Institute of Legal Executives (Victoria)

(Source: Section 107A of the Evidence Act 1958)

OPA and powers of attorney

OPA strongly recommends that everyone over 18 years consider making powers of attorney.

OPA provides a range of information regarding powers of attorney, including advice on:

• which power is right for you
• why you should appoint powers of attorney
• how to appoint powers of attorney
• how to revoke powers of attorney

 

OPA, in partnership with Victoria Legal Aid (VLA), provides a range of forms, fact sheets and guides to making powers of attorney. This includes Take Control: a kit for making powers of attorney. This step by step guide is available from both OPA and VLA.