The following forms of substitute decision-making can be made by a principal:
General Power of Attorney
Limits on powers can be specified. If not, an attorney can make any financial or legal decisions on the principal’s behalf until the power is changed, cancelled or the principal loses capacity or dies.
Enduring Powers of Attorney, Financial and Personal (EPOA)
Allows the attorney to continue to make both financial and personal decisions when the principal has lost capacity.
The Enduring Power of Attorney form now includes provision for both financial and personal attorneys to be appointed. These need not be the same person.
The attorney has legal obligations, such as to keep their property separate from the principal’s property. It is wise to provide prospective attorneys with printed information about their responsibilities and duties. Suitable Guidelines are available in “Take Control,” the Office of the Public Advocate’s publication on Power of Attorneys.
The date the power is activated and the responsibilities given to the attorney/s can be specified. For example, the Enduring Power of Attorney powers can be drafted so that the power may only take effect when capacity is lost and this is verified by medical evidence. Care should be taken not to just insert the phrase “when I lose capacity” as there can be arguments about who assesses when capacity is lost. The attorney/s can have limits on how they can manage assets. If no limits are given then the attorney/s can make any financial or legal decisions from the date the Power begins until cancelled or changed.
More than one attorney can be appointed to act at the same time and the appointment may be joint or several. If a joint appointment is to be made consideration should be given to the availability of possible attorneys, to avoid delay in responding to the principal’s needs. Ask who lives closest, is one attorney overseas or interstate and would having them act jointly be an issue in dealing with the often mundane issues of chemist’s accounts, and the payment of other daily expenses?
Clients may ask for certified copies of their Power of Attorney at the time of signing. Unless it is clear that this is immediately necessary for health reasons, you should keep the original and explain a certified copy can be provided at any time in the future when needed. This avoids having copies that can be used immediately, when this may not be necessary or what the Principal intended. Having a valid Enduring Power of Attorney kept in safe storage ensures that if the principal loses capacity in the future the power is always available for use.
Personal Powers (formerly Enduring Power of Guardianship (also known as appointment of Enduring Guardian)
The personal powers, which are only activated when a principal is unable to make their own decisions, can be limited to particular powers specified. An alternative attorney can be listed in the case that the first attorney is unable to act (e.g. they die, lose capacity or are absent for a period of time). This power relates to lifestyle matters such as where a principal lives, who they interact with and their activities. Responsibilities include making decisions based on wishes expressed by the principal. Care should be taken to ensure the principal fully understands what this may mean for them in the future with regard to who they see and where they live, particularly when clients are contemplating assets for care arrangements and wish to appoint their potential carer.
This form of power of attorney must be properly witnessed. One witness must be a person authorised to witness affidavits or a medical practitioner
Who can witness affidavits?
A list of people who can witness affidavits can be found at justice.vic.gov.au/affidavit
Medical Treatment Powers
The Medical Treatment Planning and Decisions Act 2016 comes into effect on March 12, 2018.
The new Act replaces previous legislation under the Medical Treatment Act.
The new Act does not revoke any previous documents which continue to be valid, however the Personal POA will no longer be applicable to health care issues.
The purposes of this Act are:
- a) To provide for the making of medical treatment decisions when a person has lost the capacity to make their own decisions. The appointed person is called the Medical Decision Maker.
- b) To provide for a person to prepare an advance care directive that gives either binding instructions or, is an expression of their values in relation to any future medical treatment.
Advance care directives can contain either legally binding instructional directives or expressions of your clients values in relation to treatment.
Initially there were no regulations or prescribed forms for these documents except that:
- they must be in writing and in English;
- must have the full name, date of birth and address of the person making the advance care directive;
- must be signed by the person;
- must be properly witnessed;
(i) For Advance Care directives at least one of the two witnesses must be a registered medical practitioner;
(ii) For the appointment of a medical decision maker at least one of the two witnesses must be a registered medical practitioner or a person authorized to take affidavits.
After March 12, 2018 check the Office of the Public Advocate for any current forms.