The person you appoint and empower to make decisions on your behalf is called your “attorney”.
In Victoria, the law on enduring attorneys is largely found in the Powers of Attorney Act 2014 (Vic).
You can choose whether your attorney or attorneys can make financial decisions, personal decisions or both. Personal decisions do not include matters that relate to medical treatment, or to medical research procedures. You will need a different form if you wish to appoint a medical treatment decision maker.
An attorney can be a family member or friend or someone else that you trust.
An attorney must be 18 years of age or older.
An attorney cannot be an insolvent person who is under administration.
You can't appoint:
For financial matters, you can appoint a trustee company, if you wish to.
If the person who will be your attorney for financial matters has been convicted or found guilty of an offence involving dishonesty, they must tell you about it and have it recorded in this form.
You can appoint one or more attorneys.
You can also appoint one or more additional persons to act as a back-up for you attorney, in case your usual attorney is ever unable or unwilling to act. This additional person is called an “alternative attorney”.
You can specify when and how your alternative attorney can act. If you do not specify any circumstances, an alternative attorney can only act:
Personal matters are matters that relate to your personal or lifestyle affairs but do not include matters that relate to medical treatment, or to medical research procedures. Common examples include access to support services and where and with whom you live.
Financial matters are matters (including legal matters) that relate to your financial or property affairs. Common examples include paying expenses, making investments, undertaking a real estate transaction and carrying on a business.
An enduring power of attorney does not authorise an attorney to do the following things for you:
Because it is possible that you might specify a condition that affects the validity of the power of attorney, we have not included a facility for you to do so. If you wish to include conditions, we recommend that you consult another solicitor to discuss the preparation of a conditional power of attorney document, or contact us about the manual preparation of such a document.
If you have chosen more than 1 attorney (including alternative attorneys), and if you provide for them to decide “unanimously”, then they all have to agree. If you have chosen more than 2 attorneys (and alternative attorneys), then it might be prudent to provide that they may decide by majority. That means that more than half of them have to agree. It is up to you to decide how you want your attorneys to decide. In the case of 3 attorneys, that would simply require 2 of the 3 to agree. If there are 4 attorneys, then a decision by majority would require 3 of the 4 to agree. The more of them that there are, the harder it will be for them to decide unanimously.
If you have an existing enduring power of attorney the previous enduring power of attorney will be automatically revoked (cancelled) on making the new enduring power of attorney.
Yes, under the Covid Emergency Measures legislation, it is currently possible for the signing of an enduring power of attorney and enduring guardianship document to be witnessed by a prescribed witness, viewing the person who is signing the document by audio visual means. Advice can then also be given by the same means and the prescribed witness can then sign the necessary attestation and return the signed document to you electronically.
LawOnline’s solicitor is therefore currently able to witness and certify your signature of your enduring power of attorney or enduring guardianship document during a Zoom session. Our fee for doing that is $150.00 including GST. If you wish to arrange for us to advise and witness your signature and to give our certificate, please send us an email to email@example.com so that we can make the necessary arrangements. You are, of course, free to make your own arrangements if you have access to a solicitor or to one of the other prescribed witnesses.
Witnesses must be 18 years of age or older.
One of the witnesses to an enduring power of attorney must be:
A witness cannot be:
A person who has signed the form on your behalf (if you cannot physically sign) also cant be your witness.
You do not have to submit or register this form anywhere.
You need to complete it, make sure it is signed and witnessed properly, and then keep the original in a safe place. You should keep all pages of this form together at all times.
Each of the persons who you appoint as your enduring attorney must also sign the acceptance of the appointment in the place provided in the form.
You should give your attorney or attorneys a certified copy of this form.
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