Powers of Attorney - are yours in place?

With recent changes to the laws surrounding Powers of Attorney (“PoA”), it is timely to provide a recap on the different types of PoA available and the importance of proper succession planning.

What are PoA?

PoA are legal documents that let you appoint someone to make legal decisions on your behalf.  Alternatively, you can appoint someone to ‘support’ you to make decisions for yourself. A supportive PoA is primarily for people with disabilities and is not discussed here.

PoA can either be enduring or general (non-enduring). Enduring PoA start from a date or time specified by you (or if not specified, immediately) and continue even you lose the capacity to make decisions for yourself. In comparison, general, non- enduring PoA are commonly used for single transactions or a specific period of time. For example, if you are going overseas and you need someone to be able to make financial and legal decisions on your behalf while you are away. If you lose your decision making capacity, a general PoA will no longer operate.

Who should have PoA?

PoA are not just for the elderly. Anyone can experience an accident or illness that causes them to lose their decision making capacity. As such, The Victorian Office of the Public Advocate recommends anyone over the age of 18 considers making PoA. This is especially the case if you own a business, property or have assets.

What are the different types of Enduring PoA?

Since the implementation of new PoA laws in Victoria on 1 September 2015, there are now only two types of enduring PoA (previously there were three);  

1. Enduring Power of Attorney (“Enduring PoA”)

This is a consolidation of the PoA previously referred to as “Enduring Power of Attorney (Financial)” and “Enduring Power of Guardianship”.

An Enduring PoA allows you to choose another person to make decisions on your behalf regarding:

-          financial matters, including legal matters that relate to your financial or property affairs; and

-          personal/ lifestyle decisions, such as where you live and your health care (including consent or refusal to medical or dental treatment).

2. Medical Enduring Power of Attorney (“Medical Enduring PoA”)

Medical Enduring PoA remain unchanged since the implantation of the new laws.

This PoA allows you to elect a person to make medical decisions on your behalf should you lose the capacity to do so.  It covers:

-          consent to medical or dental treatment; and

-          refusal to medical or dental treatment.

Along with a comprehensive will, PoA should be part of any good succession plan. If you would like to create or update your PoA or for more information, please contact Zelma Rudstein.