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Enduring Power of Attorney

What is a Power of Attorney 

A legal document that authorises a person(s) (called an attorney) to make financial, legal and medical treatment decisions for you.

“Enduring” means that the power continues even if the person giving the power (the donor) loses capacity to make decisions the attorney can continue to do so for them.

Types of Powers of Attorney 

There are three main types of Power of Attorney:
  • Enduring Power of Attorney (Financial)
  • Enduring Power of Attorney (Medical Treatment)
  • Enduring Power of Guardianship

Enduring Power of Attorney (Financial)

This document authorises the attorney to make financial and legal decisions on your behalf.

The power continues to operate even if the donor loses the ability (either temporarily or permanently) to make legal or financial decisions.  It is also useful where a person may be temporarily unable to attend to their financial and legal affairs, e.g. by being ill or overseas.

It is possible to appoint a single, or two or more attorneys, or appoint alternates in the event that your nominated attorney is unable to act.

Enduring Power of Attorney (Medical Treatment)

As the title indicates, this power allows your attorney to make medical treatment decisions.

Contrasted to a financial power, you can only appoint one person to be your attorney (or as the legislation calls it your “agent”).  It is usual however to also appoint an alternate in case the original agent is unable to act.

If the power is exercised, your agent can agree to, or refuse, medical treatment where your agent considers it would cause unreasonable distress to you or where your agent reasonably believes that you would consider such treatment unwarranted.  

Enduring Power of Guardianship 

This document appoints a guardian who can make personal and lifestyle decisions for the donor if the donor loses capacity.  This includes important decisions as to where you might live.  As with the medical treatment appointment, you can only appoint a single person to act but can also appoint an alternate.

Responsibility of the Attorney, Agent or Guardian

The appointed person must exercise their authority and powers that you have given to them honestly, and with reasonable care.

They should do so only when the steps that they intend taking are in your best interests and must take into account your characteristics, needs, and the way in which you conducted your affairs whilst you had capacity.

The person appointed will also be under a duty to keep proper and accurate records and in the case of the Financial Power, ensure that finances are kept separate from their own affairs.

If the person appointed does not properly attend to and manage your affairs, then their actions can be reviewed by the Victorian Civil and Administrative Tribunal and an attorney who has not properly acted in your interests can be removed.  For serious breaches, they can face criminal sanction and may be required to compensate for any losses or misuse of funds.
 
 
Published July 2014

For further advice or assistance

Contact Peter Wilson on 5337 0252 or pwilson@nevetts.com.au

The information in this publication or on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances. Nevett Ford do not warrant that information contained in links to third party sites are correct and accept no responsibility for the accuracy and reliability or any other matter in relation to a third party site.