Practical considerations

If you are drafting an Enduring Power of Attorney, be very clear that you are acting for the principal. You should take instructions from the client only and not from their relatives or friends. There is a common misunderstanding in the community that adult children can give instructions for their parent. This is particularly the case when the older person has lost capacity to both give instructions and understand the import of the documents. You have a responsibility to explain clearly to your client how each different power of attorney works, what options are available and the responsibilities of their attorneys.

Provide your client with a list of commonsense questions to consider carefully when they are appointing an attorney. For example, has the person they are considering making their attorney had a history of alcohol, drug abuse or gambling? What is their attitude to money? Or to paperwork? Are they likely to outlive the principal?  Are they in regular contact with the principal, or do they see them only rarely? Has the person agreed to be their attorney? Importantly if your client is considering an Assets for Care arrangement, what are the relationships like between the proposed attorney/s and the proposed care provider.

It may be a good idea not to execute a document on the day but to allow the client time to go away and think about the contents and their choice of attorney, and then come back another time to formalise it.

Are relatives best?

The appropriate person for a client to appoint as attorney will not necessarily be a relative. It cannot be assumed that family members have the necessary knowledge and skills to make good decisions, nor that they will act in the best interests of an older person with impaired capacity. In the case of an Enduring Power of Attorney (financial), it might be advisable for the Power to be held jointly so that actions must be agreed upon by more than one person. (If siblings are in conflict, however, it is not advisable to appoint them as joint attorneys.)

You can assist in educating an attorney by giving them information about their roles and responsibilities – which include keeping accurate records, avoiding conflicts of interest, acting in the principal’s best interests. Advise them that if they do not do this they may find themselves before VCAT.