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Who or what is an enduring attorney?

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.

Who can be your enduring attorney

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:

  1. your care worker
  2. your health provider, or
  3. your accommodation provider.

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.

Choosing your attorney

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:

  1. once your usual attorney is unable or unwilling to act
  2. if the appointment of your usual attorney is revoked (cancelled) because they are no longer eligible to be your attorney (for example, the attorney becomes your care worker or health provider)
  3. in the same way (that is, make the same types of decisions and make decisions in the same way) as the attorney they are acting in place of.

What decisions can your Attorney make?

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:

  • make a will
  • make an enduring power of attorney
  • vote in elections
  • marry or divorce
  • make decisions about your children
  • do anything unlawful
  • exercise the power of attorney after your death.

Can you insert conditions on your attorney’s power?

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.

How can attorneys decide?

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.

What if you have made a previous enduring power of attorney?

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.

Can LawOnline Witness and Certify the Document?

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 support@lawonline.co 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.

Who can be a witness?

Witnesses must be 18 years of age or older.

One of the witnesses to an enduring power of attorney must be:

  1. a medical practitioner, or
  2. a person who is authorised to witness affidavits.

A witness cannot be:

  1. your relative
  2. someone being appointed as an attorney(s)
  3. a relative of your attorney(s)
  4. your care worker
  5. your accommodation provider.

A person who has signed the form on your behalf (if you cannot physically sign) also cant be your witness.

What is the full list of persons who can witness an enduring power of attorney in Victoria?

  • A Justice of the Peace or a Bail Justice
  • Judge or the Associate to any Judge
  • A Master of the Supreme Court or the County Court or the Secretary of such a Master
  • The Prothonotary or a Deputy Prothonotary of the Supreme Court
  • The Registrar or a Deputy Registrar of the Magistrates' Court
  • The Registrar of Probates or an Assistant Registrar of Probates
  • A member or former member of either House of the Parliament of Victoria
  • A member or former member of either House of the Parliament of the Commonwealth
  • A Notary Public
  • A fellow of the Institute of Legal Executives (Victoria)
  • A member of the police force of or above the rank of sergeant or for the time being in charge of a police station
  • A person who holds an office in the public service (of Victoria) that is prescribed as an office of which the holder may receive affidavits
  • A senior officer of a Council as defined in the Local Government Act 1989
  • A person registered as a Patent Attorney under Part XV of the Patents Act 1952 of the Commonwealth
  • (A Solicitor): A natural person who is a current practitioner or registered interstate practitioner

What happens when the form is filled out and signed

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.

Open Advice

Your Enduring Power of Attorney Victoria

Personal

Personal Details

You will need to have a special type of witness to properly complete this document.

Attorney

Attorney

 

Authority

Authority that you give




Decisions

How attorneys decide




Date

Commencement date



Gifts

Conflicts


Charges

Professional charges




Generate

Generate Document

What you will need to have when you generate your document

  • A printer to print out the form. Even if you fill the form out on a computer, you will need to print it for signing.
  • Two witnesses to sign the form. for more information.
  • You can save the form and finish it later if you need to.

Signing the form (after it is filled out)

  • print out a sufficient number of copies so that you and each of your attorneys can have a signed original copy.
  • sign each copy of the form (or have a person sign at your direction) in front of two witnesses.
  • have your two witnesses sign and date the form in front of you and each other.
  • have the attorney or attorneys sign the statement of acceptance in front of a witness.
  • have a witness sign for each attorney’s statement of acceptance.