The Covid-19 Pandemic and the ongoing fear of contracting the virus has caused us all to re-think our priorities and get our affairs in order. With Covid-19 restrictions easing, it is important to plan ahead and prepare your Power of Attorney now, so that you will have peace of mind knowing that you have someone you trust to step in and manage your affairs if you lose the capacity to do so.
You should organise and prepare a Power of Attorney while you are in good health, are aware, and have decision-making capacity. Decision-making capacity means that a person can retain, understand and weigh up information necessary to make a decision, and then communicate their decision when needed.
This article seeks to provide an overview of the different types of Power of Attorney, the process for preparing the document, and what happens if you lose capacity and don’t have a Power of Attorney in place.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal document that authorises someone you trust to make decisions about your personal matters (such as lifestyle and accomodation decisions), and your financial matters (such as paying bills), if you become physically and/or mentally incapable of making your own decisions and managing your own affairs.
You must have capacity at the time an Enduring Power of Attorney is executed, and you must understand:
In an Enduring Power of Attorney, you can specify the matters covered by the document (e.g. by limiting the power of your Attorney to just financial matters only). If you wish, you can also appoint a separate Attorney for each matter (by appointing one Attorney to for financial matters and another Attorney for personal matters), or appoint multiple Attorneys to act jointly.
General Non-Enduring Power of Attorney
A General Non-Enduring Power of Attorney differs from an Enduring Power of Attorney in that it enables you to authorise your appointed Attorney to make decisions on your behalf for a specified period of time, and in relation to financial matters only.
You can also limit the scope of the power to a specific task, such as the running of a business, the sale of a property or the operation of a bank account. The powers afforded under the document end when either:
If you lose your decision-making capacity at any time, the powers contained in the document cease.
Supportive Power of Attorney
A Supportive Power of Attorney is a legal document in which you appoint an individual (or multiple individuals) to assist you to make your own personal and financial decisions during periods where you have decision-making capacity.
An individual (or individuals) appointed under a Supportive Power of Attorney can:
Here, your appointed Attorney cannot make decisions on your behalf. If you lose your decision-making capacity at any time, the powers provided to your Attorney automatically cease.
Process
Prior to executing a Power of Attorney, you should obtain legal advice on which type of Power of Attorney document is most suitable for your circumstances.
As it is a technical legal document, we also recommend that you engage a solicitor to draft the document on your behalf to ensure that it is compliant with legislation and reflects your intentions.
Selecting your Attorney
You should discuss any suitable candidates for the role of Attorney with your solicitor, as careful consideration should be given to who you appoint as your Attorney. This position is one of responsibility and you should select someone who you believe would make the same decisions you would make if you could attend to your own personal and/or financial affairs.
Your appointed Attorney must:
You can appoint multiple individuals to be your Power of Attorney. If you do appoint multiple individuals, you will need to specify whether you wish for them to act jointly (requiring them to make all decisions together), or jointly and severally (allowing them to make decisions both together and separately).
You should also appoint someone to be an Alternative Attorney, in the event that your first-appointed Attorney is unable or unwilling to act.
Witnessing Requirements
When it is time to execute your Power of Attorney, your signature must be witnessed correctly for the document to be valid.
You must sign and date your Power of Attorney in front of two witnesses, both of whom must be least 18 years of age. In addition to this, one of your witnesses must either be a person who is authorised to witness Affidavits (such as a Lawyer), or a Medical Practitioner. The Power of Attorney must also be signed and dated by your two witnesses.
The witnesses cannot be relatives, the person(s) you are appointing as an Attorney or their relative, your care worker or your accomodation provider.
Each appointed Attorney must also sign and date the document for the Power of Attorney to become valid.
Medical Decisions
It is important to note that a Power of Attorney does not enable you Attorney to make decisions regarding medical treatment for you, in the event that you are unable to make such decisions due to an injury or illness-related incapacity. If you wish for your Attorney (or another person) to make medical treatment decisions on your behalf, you will need to execute a separate legal document called a ‘Medical Treatment Decision Maker’ authorising them to do so.
What happens if I don’t have a Power of Attorney?
If you do not formally appoint anyone as your Power of Attorney and are unable to make decisions when they need to be made, the Victorian Civil and Administrative Tribunal (“VCAT”) can appoint an Administrator or Guardian to assist you and to make your decisions for you (such as the Public Advocate).
It is possible that you will not be consulted in this process if VCAT become involved, or have a say or choice as to who shall be appointed to make decisions on your behalf. Further, conflict between families or close friends could occur if there is a difference of opinion as to whom should be appointed as the decision-maker.
If you are temporarily or permanently unable to exercise your capacity to make personal and/or financial decisions yourself, a previously executed Enduring Power of Attorney or General Non-Enduring Power of Attorney will ensure that your decision-making capacity can smoothly transition to your appointed decision-maker.
Conclusion
With the ongoing nature of the Covid-19 Pandemic, it is important to ensure that you prioritise organising a Power of Attorney if there is a trusted individual (or individuals) in your life who you wish to stand in your shoes and make the appropriate personal and financial decisions for you, if you lose the capacity to do so.
If you or someone you know wants more information or needs help or advice with a Power of Attorney, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.