Who’s got the Power?

From 1 September 2015, there were changes made to Victorian legislation that affect powers of attorney.  The new Powers of Attorney Act 2014 came into effect removing old Enduring Powers of Attorney for financial and guardianship matters, and introducing a new concept of a Supportive Attorney.

What is the same?

The old Enduring Power of Attorney (Medical), made under the Medical Treatment Act 1988 remains the same.  The new legislation also does not change the operation of Refusal of Treatment Certificates under the Medical Treatment Act.

General powers of attorney, made under the Instruments Act 1958 also remain valid.  General powers of attorney apply to any power a person has at law, and can remain in force for a limited or unlimited period of time.  The new legislation does not change any of this.

What is different?

The old Enduring Powers of Attorney for financial and guardianship matters have been replaced by an Enduring Power of Attorney for financial and personal matters.

The new legislation introduces the concept of a Supportive Attorney, which is the first time this type of instrument has been introduced anywhere in Australia.  A supportive attorney will be able to support people with impaired decision making capacity to make and give effect to their own decisions.  The role and limits of a supportive attorney’s role must be set out in the document appointing the supportive attorney.

The intent behind the introduction supportive attorneys is to support people with impaired decision-making capacity to make and given effect to their own decisions.  The legislation intends to promote the autonomy and dignity of people with a disability.

The new legislation defines the meaning of decision making a capacity to provide guidance to both lawyers and other people such as doctors who need to gauge whether a person has capacity.

VCAT now has power to order an attorney under an enduring power of attorney to compensate the donor for a loss caused by the attorney contravening any section of the Act while acting as attorney.

New offences have been introduced to ward against abuse of power by attorneys.

If I have old powers of attorney, are they still valid?

Yes.  Any documents you executed prior to the change of legislation are still valid and enforceable.

What do I have to do next?

The new legislation prescribes certain forms for the use of people and they are long and complex.  At Holdstock Fittipaldi Law, we have developed our own precedents that make the process as straightforward as possible.

We are able to discuss with you your individual needs to ensure that you have the appropriate package of documents for your own circumstances.

Contact us to get the discussion underway.