VIC Power of Attorney [Enduring]

How do you get Power of Attorney in Victoria?

In Victoria there are three types of Power of Attorney (POA) Forms:

1️⃣  General (Non-Enduring) Power of Attorney (POA) publicly available for free ➲ download here;

2️⃣  Enduring Power of Attorney [this document]; and a

3️⃣  Supportive Power of Attorney (SPOA).

Both a General (Non-Enduring) Power of Attorney (POA) + Supportive Power of Attorney (SPOA) automatically cease if you lose your decision-making capacity after their execution.

If you want the Power of Attorney (POA) to continue after you lose your decision-making capacity you must use an Enduring Power of Attorney (EPOA).

Who can you appoint as your Attorney/s?

You need to consider that an Attorney will have enormous power over your financial + legal affairs.

You can appoint anyone you will agree to take on the responsibility.
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You should choose a person whom you can trust and who will manage your finances in a responsible way.
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Usually one or more family members or close friends are appointed as Power of Attorney, alternatively you may prefer to approach the States Trustees VIC or a private trustee company or lawyer to act as your attorneys, but fees will apply.

A person appointed as an Attorney must not be insolvent and must disclose to you any convictions of an offence involving dishonesty.

Who can grant an EPOA?

In order to be able to grant an Enduring Power of Attorney (EPOA), you must:

1️⃣ Be 18 years of age or over; and

2️⃣ Have decision-making capacity in relation to making the Enduring Power of Attorney (EPOA).

Decision Making Capacity

The term decision-making capacity is defined in section 4 of the Powers of Attorney Act 2014 (VIC).

A person has the capacity to make a decision as to a matter if the person is able to:-

➲ Understand the information relevant to the decision and the effect of the decision;

➲ Retain that information to the extent necessary to make the decision;

➲ Use or weigh that information as part of the process of making the decision; and

➲ Communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

Do I need to get legal advice before I sign my POA?

Yes. A Power of Attorney [whether a POA or EPOA] is an important + powerful legal document.

You should get legal advice before you sign it.

Formal Requirements for a valid EPOA

An Enduring Power of Attorney (EPOA) must be in the approved written form and comply with the requirements outlined in the Powers of Attorney Act 2014 (VIC):

1️⃣  The Enduring Power of Attorney (EPOA) form must be signed and dated by two adult witnesses in the presence of each other and the principal;

2️⃣  One witness must be a medical practitioner or a person authorised to witness the signing of an affidavit, such as a lawyer;

3️⃣  Each witness must sign a certificate containing information required by the legislation.

This includes a statement that the principal has signed the enduring power of attorney freely and voluntarily in the presence of the witness and appears to have decision-making capacity;

4️⃣  Each Attorney must sign and date a statement of acceptance in the appropriate form for the Enduring Power of Attorney to be valid; and

5️⃣  The Attorney must keep accurate records of all dealings and transactions made pursuant to the Enduring Power of Attorney (EPOA).

The prescribed form for the VIC Enduring Power of Attorney (EPOA) notes that a Power of Attorney cannot be used for health decisions.

For these decisions we recommend you use our VIC Advance Care Directive + VIC Appointment of a Medical Decision Maker documents.

Do I have to register my Power of Attorney (POA) with the Titles Office?

No, registration with the Titles Office is not essential.

➲ In order for your Attorney to sell, mortgage, lease more than 3 years, or otherwise deal with your real estate registration with the VIC Titles Office is required.

It is advisable to register your POA or EPOA so that it is:

➲ On record as a public document;

➲ Safe from loss or destruction; and

➲ More easily accepted as evidence that your Attorney is allowed to deal with your legal + financial affairs.

POA/SPOA v. EPOA

After you have signed a General (Non-Enduring) Power of Attorney you still continue to have the authority to deal with your own legal + financial affairs as long as you retain decision-making capacity.

It is at the point of time when you lose your decision-making capacity where the crucial difference between the three types of Power of Attorney becomes apparent.

‍Important: Once you have lost your decision-making capacity you have no ability to create another Power of Attorney or any other legal document.

The question of decision-making capacity is a complex one.

Once decision-making capacity is lost there is still potential it might return, but it is also possible it may not.

In an abundance of caution ➲ EPOA + Advance Care Directive / Medical Treatment Decision Maker / Support Person etc. are all strongly recommended

We recommended that as part of your Estate Planning process, both an EPOA + an Advance Care Directive / Medical Treatment Decision Maker / Support Person

Various permutations of these documents are available and the appropriate form will depend upon your individual circumstances and preferences.

Ideally you will conduct your Estate Planning at a time when there is no question regarding your decision-making capacity.

‍This ensures that in case of something unforeseen happening to you ➲ i.e., a stroke or accident; there will be at least one other person who can quickly + easily look after your money + property.

If not already in place, an Enduring Power of Attorney (EPOA) + other Estate Planning documents can be organised as soon as possible after signs/diagnosis of dementia (this is strongly advised).

EPOA's are essential for Self-Managed Super Fund (SMSF) Members

If you are a member of a Self-Managed Super Fund (SMSF) and proceed to and lose your legal decision making capacity you will encounter expensive and complex legal issues if you don't have an EPOA already in place.

The Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) allows an Enduring Power of Attorney (EPOA) to act on behalf of a member.

What happens if you lose decision-making capacity + you don't have an EPOA?

A special application for administration orders would need to be made to the VIC Civil + Administrative Tribunal [VCAT] to appoint someone as your administrator.

Note: Fees will apply which will be paid on your behalf using your money. As you would have lost your decision-making capacity you would not be able to do this yourself and would have no control over the process or who is appointed.

No Automatic Revocation by Separation or Divorce

In Victoria, separation or divorce does not automatically revoke an existing Enduring Power of Attorney (EPOA).

Formal Revocation of Enduring Power of Attorney

If your Attorney does not follow your directions or does not act in your best interest, you should revoke the Power of Attorney.

You or someone on your behalf must take reasonable steps to inform the Attorney of the revocation, preferably in writing.

The Attorney must then immediately cease to act as your Attorney.

Important: Ask your Attorney to return the Power of Attorney document to make sure that they do not continue to act as your Attorney.

If anyone else, such as a bank, has been advised about the Power of Attorney, that person or entity should also be informed of the revocation.

‍Note: In Victoria, making a new Enduring Power of Attorney (EPOA) unless specified otherwise automatically revokes an earlier Enduring Power of Attorney.

You can also formally revoke your Enduring Power of Attorney (EPOA) by completing the Revocation of Enduring Power of Attorney form.

In order to formally revoke your Enduring Power of Attorney (EPOA) you must sign the revocation form in front of two adult witnesses:

1️⃣   Someone authorised to witness affidavits; and

2️⃣  A Medical Practitioner (medical doctor).

If the Enduring Power of Attorney has been registered with the VIC Titles Office it will need to be deregistered.

Enabling VIC Legislation

The legislation governing instruments creating Enduring Powers of Attorney (EPOA) in Victoria is:

➲ The Powers of Attorney Act 2014 (VIC); and

➲ The Powers of Attorney Regulations 2015 (VIC).

Optional Extras:

➲ 💡 Trax Print Fraud + Litigation Prevention Technology $22.

Safe Storage: 

‍🔒  The Victorian Will + Power of Attorney Registry
[Anyone in Victoria can register information about where they keep their Will + Power of Attorney documents at no charge. There is also the option to physically store originals for free].
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