Changes to Powers of Attorney in Victoria

Wills and Estates: 18 March 2019

The new Victorian Powers of Attorney Act 2014 (the Act) received royal assent on 26 August 2014 and is set to come into operation, at the latest, on 1 September 2015.

The Act provides for some quite significant changes to the preparation, operation and effect of Powers of Attorney in this State.

Currently, the three most common documents often described as 'Powers of Attorney' include:

• Enduring and Non-Enduring Power of Attorney (Financial) under Parts XI and XIA of the Instruments Act 1958 (Vic);
• Enduring Power of Attorney (Medical Treatment) under section 5A of the Medical Treatment Act 1988;
• Appointment of Enduring Guardian under the Guardianship and Administration Act 1986.

There are, of course, other forms of powers which can be given depending upon the individual circumstances.

Whilst the Act does not affect the validity of documents prepared under the current regime prior to its commencement, it does repeal some of the above provisions (relating to financial attorneys and guardians) to consolidate in one single document powers of attorney for financial matters, legal matters and personal matters.

The Act defines financial, legal and personal matters and gives some helpful examples of the types of actions to be undertaken, most of which are the decisions currently being made under an Enduring (or non-enduring) Power of Attorney (Financial) and Appointment of Enduring Guardian.

Some important aspects of the Act (and differences to the current regime) include:

• more onerous duties on an attorney when exercising the power, carrying out a function or performing a duty under the Act;
• the use of different terminology in that a donor is now referred to as a principal;
•  creates a new role of supportive attorney to enable principals to continue making their own decisions with the assistance and support of a supportive attorney;
• provides a legal definition of capacity - a person is presumed to have capacity unless there is evidence to the contrary;
• provides examples of matters for which a power cannot be given under the Act;
• prescribes eligibility requirements as to who can be appointed as an attorney;
• mandates that one of the two eligible witnesses must be authorised to witness affidavits or be a medical practitioner;
• creation of criminal offences for certain conduct of attorneys; and
• expands the jurisdiction of the Victorian Civil and Administrative Tribunal in dealing with issues pertaining to Powers of Attorney.

The power must be in writing and must be in the prescribed form. We have not yet been provided with Regulations prescribing the forms.

When considering making a Power of Attorney as a principal or if you are or are intending to act as an attorney, you should carefully consider the implications of this Act.

Aitken Partners has extensive experience in this jurisdiction with two Accredited Specialists and more than nine decades experience in the area.