Power of attorney - what you need to know

Best to plan for it now, that way you’ll ensure you’re looked after just the way you want to be.

Here are some tips from our state government’s “Seniors Online Victoria” to help you choose enduring powers of attorney.

What is an enduring power of attorney?

An enduring power of attorney (EPA) is where you give someone you trust the legal authority to make decisions on your behalf.

For example, where you might live, what happens to your house, property or pets.

Are there any risks in making an EPA?

Most work well, but there is no guarantee your EPA will only be used in the way you want.

It could be misused by someone you thought you could trust.

Most victims are older people.

However, there are important steps you can take to reduce the risk of things going wrong.

What does decision-making capacity mean?

The ability to make a specific decision at the time when the decision needs to be made.

Generally, this means you are able to make a decision if you can:

● Understand the facts and choices involved;

● Remember the information and weigh up the consequences; and

● Communicate the decision in some way.

You may have experienced some decline in memory or mental agility as you have aged, or you may have been diagnosed with a condition, such as dementia.

This does not mean you don’t have the ability to make a specific decision at a specific time.

Ways to plan ahead:

A good place to start to is to talk to those close to you about your wishes and what is important to you.

Having these conversations early means you can:

● Consider things carefully while you are well and not under pressure;

● Seek advice if you need it; and

● Make sure people close to you know what you want to happen.

You may not have close family or friends who you would be comfortable discussing your wishes with.

Even if you do, it can be helpful to write down your wishes and preferences or keep a journal or blog.

If you document your wishes make sure they can be found and give a copy to people who may need to know, for example, your GP.

Choose someone you trust

The role of attorney is powerful and carries significant responsibilities.

In all circumstances, your attorney must:

● Act honestly, diligently and in good faith;

● Act with reasonable skill and care; and

● Keep accurate records and accounts.

If there is no one you trust to appoint, you can appoint someone independent, such as an accountant, lawyer or trustee company.

You should ask about their fees before doing so.

If you don’t want to do this you shouldn’t make an EPA.

If this happens the Victorian Civil and Administrative Tribunal can appoint someone to make the decision, such as the Public Advocate or a trustee company.

Choosing your attorney

It can be useful to start by identifying the qualities that are important to you.

Different qualities and skills may be relevant for different types of decisions.

You can appoint more than one attorney to have the same or different decision-making powers.

Once you have identified the qualities that are important to you, think about the people close to you objectively.

You don’t have to appoint your adult children or life partner.

Consider the age of the person you have in mind.

Think about who will be able to make good decisions for you during what may be a period of crisis.

Think about appointing one or more alternative attorneys in case your attorney is unable or unwilling to act when the power starts.

It is up to you to decide who to appoint.

If you are feeling pressured, the Office of the Public Advocate or Seniors Rights Victoria can help.

What to do once you have decided

Talk to the person you are thinking of appointing.

See if they take the time to listen to what you want, they understand the role and are willing to accept it.

You should be confident the person you appoint will be able to follow your wishes under pressure.

If you feel comfortable to do so, explain to other family members or friends why you have chosen your attorney at the time you make the appointment.

Also think about including those reasons in your enduring power of attorney document to prevent problems later.

Decide what powers to give

You decide what types of decisions your attorney(s) can make.

You can plan ahead for your medical treatment and care.

There are a number of options available, including:

● Documenting your wishes in relation to future care; and

● Appointing another person to make medical treatment decisions.

Similarly, you can authorise another person to make decisions on your behalf in relation to financial and personal matters.

Some examples of financial matters are paying expenses, withdrawing money from a bank account and selling property.

Examples of personal matters include where and with whom you live and daily living issues, such as diet and clothing.

If you appoint different people to the roles of personal and financial attorney, and they cannot agree on a decision they are both authorised to make, the decision of the personal attorney overrides the decision by the financial attorney.

Limiting the decisions your attorney can make

You can limit your attorney’s power to making decisions about specific financial and personal matters.

If you do not limit your attorney’s powers, your attorney is authorised to do anything on your behalf that can lawfully be done.

You can grant this power for either personal or financial matters, or for both.

Decide when the powers will start

You choose when your attorney’s powers start, this can be:

● Immediately;

● When you cease to have decision-making capacity; or

● Another time, circumstances or occasion.

By specifying that all or some of your attorney’s powers start immediately, you will be able to oversee and monitor the use of your attorney’s powers while you are able.

You can also obtain practical help early.

For example, if you find it difficult to get to the bank but still have decision-making capacity, your attorney can withdraw money from your bank account and pay bills for you.

Importantly, having an attorney does not remove your rights to make decisions.

For example, the fact that your attorney is paying your bills does not mean you are unable to withdraw money from your bank account.

Complete the form

Once you have thought about what you want to include in your EPA and who you would like to appoint, complete the enduring power of attorney form.

When you have filled it in, you must sign your EPA in front of witnesses.

Finally, arrange for your attorney to sign the "statement of acceptance of appointment".

Your attorney must also sign in front of witnesses.

Your enduring power of attorney is not effective if your attorney has not signed the statement of acceptance of appointment.

See the OPA website for the enduring power of attorney form, information about witnessing requirements.

Revoking your EPA

The Office of the Public Advocate (OPA) has more information at this link.

You can revoke, or cancel, your EPA at any time, so long as you have the decision-making capacity to do so.

For help you can phone OPA on 1300 309 337 or email Advice@justice.vic.gov.au