An enduring power of attorney is a legal document by which you appoint a trusted person such as a family member or friend (referred to as ‘the attorney’) to make financial, legal and property decisions on your behalf if you lose the mental capacity to do so yourself. You can appoint one attorney, and up to two alternative attorneys.
What is an Enduring Power of Attorney?
A person is entitled to make their own decisions. However, injury or illness can render a person are unable to make decisions, either temporarily or permanently.
Making an Enduring Power of Attorney, allows you to choose who will make important financial and personal decisions for you, such as where you will live or what happens to your house, if you are unable to make decisions for yourself in the future.
You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.
Your attorney cannot make medical treatment decisions for you unless they are also your Medical Treatment Decision Maker.
Who can make an Enduring Power of Attorney?
Any person who is over the age of 18 years and has full capacity can make an Enduring Power of Attorney.
When should I make my Enduring Power of Attorney?
Now! You cannot make an Enduring Power of Attorney after you have lost capacity. Having an Enduring Power of Attorney in place can give you great peace of mind, knowing that there is someone who can look after your affairs if you are not able to do so for yourself.
A warning about making an Enduring Power of Attorney. While most Enduring Powers of Attorney work well, it not possible to guarantee that your enduring power of attorney will only be used in the way you want. There are steps you can take to reduce the risk of things going wrong, such as placing certain limits on what your attorney can do, or having the Enduring Power of Attorney coming into effect on the happening of a specific event. We can advise you on these options.
What should I consider when making my Enduring Power of Attorney?
Some of the things you may wish to consider when making your ACD may include the following:
- What matters most in my life? What does “living well” mean to me?
- What worries me most about the future?
- For me, unacceptable outcomes of medical treatment after illness or injury are (e.g. loss of independence, high-level care, being unable to communicate or to recognise people).
- What religious or cultural matters have significance for me?
- Are there other people I would like involved in discussions about my care?
- If I am nearing death, what things would be important to me?
- Do I want to be considered for organ donation?
What things can my Attorney do or not do?
You decide the types of decisions your attorney can make. These can be decisions about:
- both personal and financial matters
- personal matters only
- financial matters only or
- only the personal or financial matters
that you specify.
The Powers of Attorney Act specifies things that your attorney cannot do on your behalf. These are:
- make decisions about the care or wellbeing of children
- make (or revoke) a will
- make (or revoke) an enduring power of attorney
- consent to a marriage or a sexual relationship or the dissolution of a marriage
- make decisions about adoption of a child
- enter into surrogacy arrangements
- manage your estate on your death
- consent to an unlawful act.
Who should know about my Enduring Power of Attorney?
It is important that your Medical Treatment Decision Maker should be aware that you have made an ACD. You should also ensure that a copy of your ACD is delivered to your medical practitioner before admission to hospital, or that it is readily accessible in the event that you are taken to hospital in an emergency.
We recommend that you keep the original signed copy of your ACD in a safe place. Alternatively, we can store your ACD indefinitely for you, and provide you with certified copies to give to those who may require them.
Other ways to make sure your ACD is readily available to those who might need to refer to it include:
- uploading a copy of your ACD to the online encrypted portal that we can create for you as our client (no additional cost)
- uploading a copy to My Health Record at www.myhealthrecord.gov.au
- giving a copy to your health practitioner and/or your hospital
- giving a copy to any other health practitioners who will need to access it.
How long does an Enduring Power of Attorney last?
You can choose for your attorney(s)’ powers to start:
- when you cease to have decision-making capacity for the matters or matter
- at another time, circumstance or occasion.
You can specify that the powers start at different times for different matters. If you do not specify, the powers start immediately for all matters.
If the power starts immediately (while you still have decision-making capacity for the matters), you oversee the use of your attorney’s power and your attorney acts at your direction.
You can revoke (cancel) your Enduring Power of Attorney at any time while you still have capacity, by completing a revocation form and informing your attorney of the revocation. It will also be revoked:
- If it is cancelled by VCAT
- If all the people you have appointed have died or are unable to act for you
- When you die
An earlier power of attorney will be automatically revoked if a new Enduring Power of Attorney is made. If you made an enduring power of attorney or enduring power of guardianship in the past, this will be automatically revoked.
This means that if you made any of the following powers of attorney, they will be automatically cancelled when you make this new enduring power of attorney, unless you specify otherwise:
- an enduring power of attorney made under the Powers of Attorney Act 2014
- an enduring power of attorney (financial) made under the Instruments Act 1958
- an enduring power of guardianship made under the Guardianship and Administration Act 1986.
What are the formalities of making an Enduring Power of Attorney?
We recommend that, when making your ACD you, should also formally appoint your Medical Treatment Decision Maker. To make a valid ACD you need to sign in front of two witnesses. One must be a registered medical practitioner (a medical doctor).
Neither witness can be someone you have appointed as your medical treatment decision maker.
Your ACD is valid as soon as it is signed and witnessed correctly, but it can only be used when you do not have decision-making capacity to make decisions for yourself.
Can I change my Enduring Power of Attorney?
Yes, an Advance Care Directive made previously under the Medical Treatment Planning and Decisions Act 2016 (Vic) is automatically revoked when you make a new one.