Relevant legislation:
Powers of Attorney Act 2014
Powers of Attorney Amendment Act 2016
Powers of Attorney Amendment Regulations 2017
Medical Treatment Planning and Decisions Act 2016
Guardianship and Administration
Guardianship and Administration Act 1986
Victorian Civil and Administrative Tribunal Act 1998 (Vic.)
On 1 September 2015 the Powers of Attorney Act 2014 came into force. This Act replaced the former Instruments Act sections relating to Powers of Attorney. It consolidated the Enduring Financial Power and the Personal Power into the one document. The Personal Power replaces the Enduring Power of Guardianship.
When seeing clients you should ask to see any documents of appointment such as Powers of Attorney, or any VCAT orders. Older Powers of Attorney remain valid until revoked and do not necessarily need to be redone. If revoking an older POA, care should be taken to use the revocation form that corresponds to the document. Since the Powers of Attorney Amendment Act 2016 came into effect on 1 May 2017, any new POA made will automatically revoke any other existing POA. It is important to ensure that any bank or other Institutions that may be acting on an old power, are notified immediately of the changes.
The new forms now contain both financial and personal powers in the one document. Care should be taken to discuss in detail with your client, what effect each one will have on them, both now and in the future, when they may have lost capacity.
Generally, it is advisable for a person to have Enduring Powers of Attorney in place so that the appointment of an administrator and/or guardian is not necessary in the event that the person loses capacity to manage their own affairs.
Enduring Powers of Attorney can also be misused and are not subject to the same reporting requirements and monitoring as appointments under Guardianship and Administration laws. Applications can be made to VCAT to revoke a power, or to make an order that the attorney submits details of all expenditure and dealings with a client’s funds and assets. Under the Powers of Attorney Act, s77 gives VCAT the power to order compensation of monies misused, without the necessity to make a further application to other State courts to enforce a VCAT order.