The content on this site is information only and is not legal advice. If you need legal advice please contact us.
Issues surrounding powers of attorney are important at any stage of adult life, and legal guardianship and administration become more important as you head into your senior years. Planning for the future can give you peace of mind, so it’s a good idea to understand more about the law in this area.
A Power of Attorney (POA) is a document which allows you to give someone else authority to make decisions for you if you’re unable to make those decisions for yourself: they may be personal, medical or financial decisions. That person is known as your attorney.
You may be unable to make decisions for yourself if you’re
A POA is a legal document, which you must sign in the presence of a witness. The person you appoint as your attorney must also sign the document.
You should only make a Power of Attorney if there is someone you trust who can act as your attorney. They should understand what is important to you, and they should be willing and able to act on your wishes, so far as possible. Otherwise, you shouldn’t make a Power of Attorney.
POAs have some specific terms which will help you understand this area of the law:
There are different types of POAs for different situations. An attorney can only exercise the specific authority given to them by the POA.
Every State and Territory in Australia has different laws for POAs. In Victoria, there are three different types of POA:
General non-enduring Power of Attorney
This type of POA gives authority to your attorney to act for you for particular reasons, which need to be specified in the POA document.
They are known as non-enduring POAs and are only intended to be used for a limited time. This POA ends when the task is completed, or when you:
Celeste was preparing to travel overseas for six months. She wanted to make a general non-enduring Power of Attorney for the time she would be away, to pay her household bills, insurance and for any maintenance work on her house. She asked her mother, Audrey, to be her attorney. Audrey agreed.
Celeste asked her lawyer to create a non-enduring Power of Attorney which would permit Audrey to access Celeste’s bank account to:
The Power of Attorney would be effective from the date Celeste left Australia, to a few weeks after the day on which she would return.
Enduring Power of Attorney
You can use an enduring POA for financial and personal decisions, for example:
They are known as enduring POAs because they continue to operate beyond the point at which the person has legal capacity to make decisions for themselves. They end when the person dies, when they revoke (cancel) the Power of Attorney, or when someone else applies to revoke the Power of Attorney.
While anyone can make an enduring POA, they are especially useful to older people who may develop health conditions which affect their ability to understand decisions, or to manage their affairs.
You can use the POA document to specify what your attorney is authorised to do, and when they can use their authority.
The enduring POA doesn’t cover medical decisions, unless you made an enduring POA (medical treatment) before 12 March 2018. For more information about making medical decisions, see How do I appoint someone to make medical decisions for me?.
Diego has no children but has always had a close relationship with his nephew, Antonio. Diego’s wife died many years ago, and at age 78, he has difficulty finding the energy to go to the bank and deal with his investments. He’s concerned that if he develops an illness, he won’t be able to manage on his own.
After discussing the issue with his lawyer, Diego decides that it’s time to make an enduring Power of Attorney. He asks Antonio to be his attorney. Antonio agrees, and Diego instructs his lawyer to draft the document, with special instructions about Antonio’s authority, should Diego be unable to manage his affairs.
Appointment of Supportive Attorney
An Appointment of Supportive Attorney (ASA) is made by you as principal when you want some assistance in making personal and financial decisions. These decisions don’t include buying or selling real estate, or any other sales or purchases over $10,000.
The attorney is appointed as a support person. You must still have capacity to make the decisions but you’re choosing to have the attorney as reassurance. For example, the attorney can:
The attorney has no authority to make decisions for you. If you want someone to make decisions for you, you will need to consider one of the other POAs.
Vesna is 81 years old, living on her own. Her mind and body are fit and healthy. However, Vesna finds it difficult and frustrating to manage issues such as personal banking, her utility accounts, her internet service and her mobile phone account.
After speaking with her lawyer, she decides to make an ASA, appointing her son Marko as her attorney to help her:
Vesna feels much more in control of her affairs and is once again confident about remaining independent.
For more information about the different types of POAs, see the Law Institute of Victoria’s website page, Powers of attorney
Appointing an attorney
You also need to think about appointing an attorney. Your attorney must be over the age of 18 and understand the nature and effect of the POA and the decisions they may make on your behalf.
Most importantly, the attorney must be someone you trust. If your attorney is dishonest, they may steal your assets, and you could have difficulties getting them back, even if the Police take action.
You should speak to the person about becoming your attorney because they must be willing and available to act as your attorney if required. You may wish to consider appointing a second (default) attorney if the first attorney is unable or unwilling to act.
You must be at least 18 years old to make a POA.
When making your POA, you must understand:
A POA is a legal document which, in some cases, can give significant power to your attorney to manage your affairs. It’s crucial that you completely understand the nature and effects of a POA. For this reason, you should not attempt to make a POA on your own. You should seek legal advice. You can:
You can have a POA at any stage of your adult life. In some situations, there may be a good reason for getting one. For example, you want a <non-enduring POA (link to What are the different types of POAs? Section above)> while you travel overseas.
Suppose you have any assets, including savings in bank accounts. In that case, it may be a good idea to have an enduring POA, in case you unexpectedly can’t make decisions for yourself, for example, if you have an accident.
As you get older, it’s a good idea to review your POA regularly to ensure it continues to reflect your wishes.
You should seek legal advice if you’re not sure about when to make a POA.
Your attorney needs to be someone you trust. They should know you well enough to understand your wishes. They should act in your best interests at all times.
They should have enough skills to be able to manage your affairs, although this doesn’t mean they need to be a professional. For example, your attorney doesn’t have to be an accountant to manage your bank accounts and pay your bills. Usually, the skills they need are life skills – they can manage their own affairs and make decisions about similar things.
Your attorney must also be able to keep records of all the things they do for you. For example, if they are paying a bill or buying something, they should keep receipts and payment reference numbers.
If you don’t know who to appoint as an attorney, you can speak to your solicitor about using a professional attorney, for example:
Professional attorneys charge fees for their services, so you should ask for information about their fees and services before making a decision. For more information about professional attorneys, contact us to make an appointment, or get in touch with Seniors Rights Victoria.
The Victorian Civil and Administrative Tribunal (VCAT) has the power to appoint an attorney if you haven’t appointed anyone and you no longer have capacity to do so (you no longer understand the nature or consequences of your decisions).
Medical treatment decision-maker
You can appoint a medical treatment decision-maker (MTDM) to make medical decisions for you if you’re unable to make these decisions for yourself. You may be unable to make medical decisions due to illness, injury or lack of capacity (meaning you can’t understand the nature or consequences of any decisions about your medical care).
If you’re under the age of 18 years, you can’t appoint a MTDM decision maker. Medical decisions which concern you will be made by your parent, guardian, or someone else who has parental responsibility for you.
Your MTDM can step in to make medical decisions on your behalf if you’re permanently or temporarily unable to make decisions for yourself.
As with POAs, when appointing a MTDM, you need to choose someone who you trust, who knows you well, and who understands your preferences and values. You have the option of choosing a back-up MTDM, in case the first MTDM is unable or unwilling to act.
To appoint a MTDM, you need to fill in a form and sign it in the presence of two adult witnesses. At least one of the witnesses must be a doctor or someone who can witness affidavits (for example, a lawyer).
You can download MTDM forms and instructions from the health.vic website. You don’t need legal advice before completing the forms, but it’s a good idea to discuss your medical needs with someone you trust, for example, a lawyer or close relative. For free legal advice, contact us to make an appointment.
Advance care directive
If you have specific wishes for your care or medical treatment, you may wish to make an advance care directive (ACD). An ACD allows you to set out in detail the management of your medical treatment and care if you’re unable to make decisions for yourself.
You may make an Instructional Directive which is a statement of your medical treatment decision; and takes effect as if you had consented to, or refused, the medical treatment. For example:
These instructions are legally binding; your doctors and other healthcare professionals must follow them.
You may also make a Values Directive which is a statement of your values and preferences for your medical treatment. It will help ensure that you’re as comfortable as possible. For example, it can include preferences about:
These preferences aren’t legally binding but are a useful guide to those who care for you.
It’s a good idea to discuss your ACD requirements with your doctor (your general practitioner, or GP). If you have also made a POA, you should make sure both your attorney and doctor are aware of your wishes.
You can cancel (revoke) an ACD and make a new one at any time by completing the correct form.
You can download ACD forms and instructions from the health.vic website. You don’t need legal advice before completing the forms, although you need to meet the formal requirements for signing and witnessing the forms. The instructions are included in the form.
Even if you have capacity to make your own decisions about medical treatment, sometimes it’s reassuring to have a support person who can help you by communicating your decision (for example, to doctors or family members), or making sure your wishes are met. The support person has no authority to make medical decisions for you.
You can appoint a support person by filling in a form. Your support person can be the same person as your MTDM, or someone else. Your support person should be someone you know well and who you trust.
You can cancel (revoke) an appointment of a support person and make a new appointment at any time by completing the correct form.
You can download support person forms and instructions from the health.vic website. You don’t need legal advice before completing the forms, although you need to meet the formal requirements for signing and witnessing the forms. The instructions are included in the form.
Which POA is best?
When considering a POA, you must first decide which POA is best for you. This can change over time, so it may be that you need to replace your POA as your circumstances change.
You can also have different POAs for different reasons, all operating at the same time. For example, while you have capacity, you can make an enduring POA for your legal and personal issues. This POA can continue to operate if you lose capacity in the future.You can also have another POA which deals with medical issues and treatments.
You will need legal advice to work this out. You can:
To help in this process, you need to consider whether:
Your POA can only operate during your lifetime. Once you die, the POA is of no effect. If you have a valid <Will, the Will takes effect after your death (link to Wills page)>, with your executor managing your estate to wind it up and distribute it to your beneficiaries.
If you decide you need to change your POA, you need to cancel (revoke) your POA and replace it with a new one.
If there are any circumstances with which you’re no longer satisfied, or if your situation has changed, you may need a new POA. For example:
If you decide to make a new Power of Attorney, it will cancel (revoke) the previous Power of Attorney. To make a new POA, you need to contact your lawyer to arrange for them to draft a new POA.
You can only change your POA if you have the capacity to do so. That is, you understand what you’re doing and the consequences of your actions.
If you don’t want to appoint a new Attorney,you need to complete and sign a Revocation of Power of Attorney form which is appropriate for the type of POA that you have. Different forms are used for enduring and non-enduring POAs. You can find the forms on the Public Advocate of Victoria’s website. However, we recommend that you seek legal advice before completing the form.
Once you have completed the form, you should give your attorney a copy. Keep a record of the date you did this, whether you sent it by post or in person, and any conversation between you and the attorney.
It’s also a good idea to send a copy to your bank and any other organisations which your attorney may have contacted. Keep a record of which organisations you sent the revocation, as well as the date.
If you’re unsure of what to do, you can:
You’re not legally required to have a POA: it’s your choice. However, if you don’t have a POA, you may need to consider the possibility that:
Someone you don’t know may be required to make decisions about your affairs, for example, a professional trustee
You may not have any control over decisions about your affairs, because you don’t have a POA with conditions written into the document
Sometimes, a person loses capacity before they make a POA: they lose the ability to understand the nature and consequences of their decisions. One example of this is when a person develops advanced dementia.
If this happens to you, any interested person can apply to the Victorian Civil and Administrative Tribunal (VCAT) to have a or an appointed to take charge of your affairs. An interested person includes a:
Hospital staff member
VCAT will only make an Order for guardianship or administration if you have a health condition which prevents you from managing your affairs. There must be a medical report or some other medical evidence which confirms this. VCAT can request your doctor to provide a medical report.
For more information about whether you should make a POA, contact us for free legal advice, or see the Public Advocate of Victoria’s factsheet, Questions for your lawyer.
There are two essential requirements to meet if your parent is to make a POA:
If these three requirements aren’t met, the POA is invalid, and the appointed person has no power to act as their attorney.
If your parent wishes to make a POA, you can organise for them to see a lawyer or to obtain advice from BCLS or a private lawyer.
If your parent no longer has the capacity to make a POA, you may need to apply to the Victorian Civil and Administrative Tribunal for a guardianship or administration Order. See below for more information about these types of Orders
The POA principal can revoke (cancel) a POA by signing a Revocation of power of attorney form and giving it to the attorney. <For more information see our section above: How do I change or cancel my power of attorney? (Insert link to section above)>
If you can, speak to the principal and ask them how they are, and what’s happening with the issues the attorney is managing. Try to work out if they understand the decisions and consequences, as that may indicate whether they have the capacity to make decisions. If you believe that capacity is an issue, or if they are being abused financially, emotionally, physically, or in some other way, seek help immediately from BCLS, Seniors Rights Victoria, or Victoria Police .
If they are in danger, call 000 immediately.
If you believe the attorney isn’t acting in the principal’s best interests, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for an Order to revoke the POA. They can order an investigation to check that assets have been managed properly. You may also need to apply to VCAT to ask for an Order appointing a <guardian (link to section below)> or <administrator (link to section below)>.
If you believe that the other attorneys’ decisions aren’t in the principals’ best interests, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for an Order to revoke the POA or to remove one or more of the appointed people. You may also need to apply to VCAT to ask for an Order appointing a <guardian (link to section below)> or <administrator (link to section below)>.
VCAT will only make an Order for guardianship or administration if your parent has a health condition which prevents them from managing their affairs. There must be a medical report or some other medical evidence which confirms this: you can ask their doctor to send a report to VCAT.
However, this type of action can cause difficulties in your relationships with the other attorneys. If VCAT decides not to revoke the POA, you will likely have to continue working together.
In this type of situation, mediation may help. Mediation is a meeting in which you and the other parties come together to meet with an independent person (the mediator) who helps you work out a way to resolve your differences without resorting to legal action. Mediation is often successful in sorting out these types of disputes. You can arrange free and confidential mediation at:
Body: Guardianship gives a person or organisation the power to make personal decisions for another person who can’t make their own decisions because of a disability. A disability may include:
Guardianship Orders allow personal decisions to be made, including living arrangements, and medical decisions
Guardianship Orders are the legal Orders made by the Victorian Civil and Administrative Tribunal (VCAT) which appoint a person (or organisation) as guardian decision-maker for another person.
A guardian can make some decisions for you if you’re unable to make decisions for yourself. . Because guardianship concerns lifestyle decisions, the decisions which a guardian is allowed to make may include:
Wherever possible, a guardian must act according to the wishes of the represented person. Guardians also have other duties, including to:
If any financial decisions are necessary, an <Administration Order is required (link to Administration Order section)>.
f you’re concerned about a friend or relative, it may be because you’ve noticed changes in their behaviour. For example, they:
The first thing you should do is try and discuss these issues with them.
If you don’t have any success, or you remain concerned, you may be able to contact one of their close and trusted relatives, or their doctor. If you don’t know who to call, contact us for help to work out what to do next.
If you believe they can’t cope without some help and support, you can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a Guardianship or Administration Order. VCAT will need evidence that they can’t manage on their own and may request a medical report from the person’s general practitioner.
Remember that the person is highly vulnerable to people taking advantage of them, including their family. If you think someone is taking advantage of them, you can make an urgent application to VCAT.
If you’re concerned that a family member or other acquaintance is struggling to make their own decisions or to look after themselves, and they are or may be in danger, you must take urgent action to save them from harm.
Call 000 if it’s an emergency.
You can apply for a Guardianship Order to the Victorian Civil and Administrative Tribunal (VCAT). You need to complete an application form and give it to VCAT. You will need to provide some details about why you think the Orders are necessary. If you have other reports, for example, medical reports or caseworker reports, you should also provide those.
Once you have filed your application, VCAT will give you a hearing date. You need to give the person a copy of the application.
We can advise you on completing an application form and prepare for a VCAT hearing.
VCAT considers that these types of applications should be a last resort. It will carefully assess the evidence, as well as the interests and abilities of the person.
In working out whether to make an Order, VCAT will consider whether:
Even if you make an application, it doesn’t mean that VCAT will appoint you as a guardian. Sometimes, it may be more appropriate to appoint a trustee company. Sometimes, another friend or relative is more appropriate. You can apply to be the guardian in your application form, or you can nominate another person or organisation.
If VCAT grants the application, it will make an Order with specific conditions about what the guardian is and isn’t allowed to do. If the guardian doesn’t follow the Orders, it’s against the law.
If you believe your guardian isn’t considering your wishes when making decisions, you can apply to Victorian Civil and Administrative Tribunal (VCAT) to have them removed as your guardian. Depending on the circumstances you may be able to apply for a different guardian or to have the Guardianship Order cancelled.
If you’re concerned about the actions of someone else’s guardian, especially if you think they’re failing to act in the best interests of the protected person, you can apply to VCAT to replace the guardian.
Major changes to the Victorian guardianship laws came into effect on 1 March 2020. The old laws continue to apply to any Guardianship Orders made before that date. If you are affected by Orders made under the old laws, and you have questions or concerns about the Orders, you should seek legal advice.
Body: Administration gives a person or organisation the power to make legal and financial decisions for another person who can’t make their own decisions because of a disability. A disability may include:
Legal Orders give these powers to an administrator.
Administration Orders are the legal Orders made by the Victorian Civil and Administrative Tribunal (VCAT) which give an administrator the authority to make financial and legal decisions on behalf of another person (the represented person).
An administrator can be a person or an organisation.
An administrator can make legal and financial decisions for you if you’re unable to make decisions for yourself. They are only allowed to make the decisions about the things specified in the Administration Orders. These may include:
Wherever possible, an administrator must act according to the wishes of the represented person. Administrators also have other duties, including:
If any lifestyle decisions are necessary, a <Guardianship Order is required (link to Guardianship Order section)>.
If you’re concerned that a family member or other acquaintance is struggling to make their own decisions, or to look after their legal or financial affairs, you can apply for an Administration Order to the Victorian Civil and Administrative Tribunal (VCAT).
You need to complete an application form and give it to VCAT. You will need to provide some details about why you think the Orders are necessary. If you have other reports, for example, medical reports or caseworker reports which give details of the disability, you should also provide those. You can ask these people to send their reports directly to VCAT.
Once you have filed your application, VCAT will give you a hearing date. You need to provide the person with a copy of the application.
We can advise you how to complete your application form and prepare for a VCAT hearing.
At the hearing, VCAT will carefully assess the evidence, as well as the interests and abilities of the person, to work out whether the Orders are necessary.
VCAT will consider whether:
If you make an application, it doesn’t mean that you must apply to be the administrator. Sometimes, it may be more appropriate to appoint a trustee company. You can apply to be the administrator in your application form, or you can nominate another person – such as a friend or family member of the represented person – or an organisation such as State Trustees.
If you believe your administrator isn’t considering your wishes when making decisions, you can apply to Victorian Civil and Administrative Tribunal (VCAT) to have them removed. Depending on the circumstances you may be able to apply for a different administrator or have the Administration Order cancelled.
If you’re concerned about someone else’s administrator, especially if you think they’re not acting in the best interests of the represented person, you can apply to VCAT to replace them.
If the State Trustee is your administrator, it means that the Victorian Civil and Administrative Tribunal (VCAT) has previously made an Order to appoint them as your administrator. If you believe you can now manage your affairs, you need to consider what has changed in your life to make you capable. For example:
You can apply to VCAT to have the Order removed, (or you can ask for the Order to be removed at VCAT’s next review), and to support your application you will need to provide evidence such as medical and other reports from your:
Sometimes, VCAT isn’t satisfied that you’re ready for full independence. But if it believes you can be partially independent, it can make Orders for the State Trustees to give you some money to allow for your partial independence. For example, VCAT may order that State Trustees pay most of your money to you, but that State Trustees continue to pay your rent. It may be a temporary measure so VCAT can check how well you’re coping. If you can manage this step, it may later consider removing the administrator.
Major changes to the Victorian administration laws came into effect on 1 March 2020. The old laws continue to apply to any Administration Orders made before that date. If you are affected by Orders made under the old laws, and you have questions or concerns about the Orders, you should seek legal advice.
Last modified on December 17th, 2020 at 1:36 pm
The content on this site is information only and is not legal advice. If you need legal advice please contact us.