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Estate Planning

Powers of Attorney

Medical Treatment Decision Maker

Appointing a medical treatment decision maker to carry out your wishes and make important decisions regarding your medical treatment.

Financial and/or Personal

Authorising another person (or people) to make legal, financial and lifestyle decisions on your behalf, which may or may not be restricted by you.

General Non-Enduring Power of Attorney

Appointing another person to act on your behalf for a specific purpose only, such as selling your house for a certain price.

Supportive

Designed to promote the rights of people with disability (although anyone may use them), this document appoints someone to support you in making and giving effect to your decisions.

Enduring Powers of Attorney are legal documents whereby you appoint another person to make certain, clearly stated decisions on your behalf in the event that you no longer have the capacity to do so yourself, or in circumstances of planned inability, such as international travel, medical procedures or for dealing with international assets.

Recipients of such an appointment (the “attorney” or “agent”), will then be able to stand in your place to ensure that important business, financial, healthcare and other functions can continue uninterrupted.

Appointment of Medical Treatment Decision Maker (“AMTDM”)
(previously known as a Medical Power of Attorney)

An AMTDM allows you to appoint a person (your “medical decision maker”) to make decisions about medical treatment on your behalf in the event that you lose capacity for any reason.

Registered doctors and dentists and other medical practitioners cannot treat you as a patient without your valid consent (unless it is an emergency or the treatment is minor). In order to give consent, you must be over 18 and understand the general nature and effect of the treatment in order to make an informed decision. If you lack this capacity, another person must make decisions on your behalf, which is why appointing a medical agent is so important.

The Medical Treatment Planning and Decisions Act 2016 (VIC) now allows for a person to make an Advanced Care Directive (“ACD”). An ACD is a document that sets out a person’s instructions, preferences or values in relation to the medical treatment that person is to receive. The ACD is a legally binding document and must be followed by your AMTDM and any medical personnel who are providing you with medical care.

You can make an ACD provided you have decision making capacity to do so and in relation to each of the directives. An ACD requires two people to witness the document. One of the witnesses to an ACD must be a medical practitioner.

Enduring Power of Attorney (Financial and/or personal)

Formerly two separate appointments, Enduring Power of Attorney (Financial) and Enduring Power of Attorney (Guardianship), new legislation has combined these powers into one document, although you may still appoint more than one attorney, or separate attorneys for financial decisions versus personal decisions.

This type of Power of Attorney can take effect immediately, on a specified day or occasion, or in the event that you become mentally incapacitated. The powers given to your attorney can be as extensive or as restrictive as you choose. For example, they may be responsible for all your financial and legal transactions, or they may be responsible for only some, such as writing cheques and paying bills.

Your attorney is obliged to treat you with dignity and respect, and to consider your needs, wishes and rights at all times. This is particularly important when making personal decisions on your behalf, such as where you will live, and your daily living needs.

General Non-Enduring Power of Attorney

This type of Power of Attorney is particularly useful for short term events or circumstances that have a set timeframe. Some examples of use are:

  • To sell your house for a specific figure;
  • Operate your bank account;
  • Allow someone to control your business affairs; or
  • Act on your behalf while you are overseas or in hospital.

A general non-enduring power of attorney ends once the purpose it was granted for has been completed, or you withdraw it. It will also end immediately if you were to pass away, become bankrupt or lose the capacity to manage your affairs.

Supportive Power of Attorney

A relatively new Power of Attorney, Supportive Power of Attorney appointments are designed to promote the rights of people with disability. However, there can be many reasons why you may want support in making your decisions. While you can be supported informally at any time, making a supportive attorney appointment can be helpful as organisations must recognise the authority of the person nominated in your support role. The person (or people) that you appoint are known as your ‘supportive attorney(s)’.

In your role as the ‘principal’, you can appoint another person (or people) to support you in making and giving effect to your decisions. The key point, is that you remain in control, and the decisions are yours to make.

You can give power to the person you appoint, to access information from organisations (such as hospitals, banks and utility providers), to communicate your decisions and to give effect to your decisions.

Important Pre-requisites for Power of Attorney Granting

Given the serious nature of appointing someone else to make your decisions, there are stringent requirements to preparing and executing the Powers of Attorney. Some of these are set out below:

  • For all attorney making, you must be over 18 and have capacity. Decision-making capacity means that you can understand, retain, evaluate and weigh up relevant information and communicate your decisions. You must understand:
  • the nature of the document you are signing;
  • what powers are being granted to the attorney;
  • what powers you are retaining; and
  • the options to cancel or change your attorney or terms of the appointment.
  • The attorney being appointed by you must also be over 18 and have capacity. They must also agree to be your attorney.
  • Granting the Power of Attorney must be done in writing in the prescribed format, and be witnessed by an authorised witness.
  • These powers can be restricted or terminated at any time while you have capacity.

For more information on granting Powers of Attorney, or reviewing your current arrangements, contact our estate planning team here.

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Paul Traianedes
Principal Solicitor - Estate Planning

Paul is the Principal Solicitor in Estate Planning at R.B. Flinders.

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Magdalene Kambelos
Lawyer

After being admitted to practice, Maggie commenced as a lawyer with RB Flinders in August 20...