You may have heard about the new Powers of Attorney Bill just passed by the Victorian Parliament. It looks like it will come into effect over in September 2015.
The Bill clarifies the existing law on enduring powers of attorney but makes two big changes:
- People with a disability can now appoint a ‘supportive guardian’ to help them take more control in determining their legal affairs.
- You will need either a doctor or someone authorised to witness affidavits to be one of the witnesses (rather than someone simply authorized to witness statutory declarations).
The Bill doesn’t invalidate existing powers of attorney. Nor does it affect the appointment of an agent for the purposes of making medical treatment decisions.
If you or someone you know has a disability, or if you are have been appointed as someone’s attorney, here’s how you might be affected:
Creating the role of ‘supportive guardian’
The Bill provides for such an adult (the 'principal') to appoint a person who will support them to make and give effect to their own decisions (the ‘supportive attorney’). It is intended to be a practical solution for people who need support implementing their decisions but still possess the capacity to make such decisions. For example, a principal may authorise a supportive attorney to obtain information (such as medical reports or financial statements) on their behalf so they themselves can later make an informed decision.
This new role will provide certainty and peace of mind for other third parties involved, allowing them to deal with the supportive attorney more confidently than if the relationship were informal.
Definition of decision-making capacity
Though ‘capacity’ is a key concept in the operation of powers of attorney, none of the existing legislation provides a clear-cut definition of what that threshold actually looks like. Following the approach taken in the new mental health laws that were recently enacted by Parliament, this Bill defines decision-making capacity.
Importantly, the Bill sets in stone the notion that a person is presumed to have decision-making capacity unless there is evidence to the contrary.
Clarifying the distinction between ‘attorney’ and ‘guardian’
‘Attorney’ will refer to all appointments that a person chooses to make for someone to act on their behalf whereas ‘guardian’ will apply to those that VCAT makes (because a person is no longer capable of making such appointments).
Once the Bill commences, it will be possible for a person to confer under a single enduring power of attorney powers that previously required both an enduring power of attorney and an enduring guardianship.
Protecting principals from abuse
Importantly, the Bill creates two new offences aimed at protecting principals from abuse. Firstly, it will be an offence to obtain dishonestly an enduring power of attorney. Secondly, the Bill prohibits an attorney from dishonestly obtaining financial advantage or to cause loss to the principal.
Additionally, the Bill gives VCAT power to order an attorney to pay compensation to a principal for a loss caused by the attorney (a power previously held only the Supreme Court).
What about general powers of attorney?
General powers of attorney (which are referred to in the Bill as general non-enduring powers of attorney) will undergo only minor changes and remain largely governed by the previous statutory and common law provisions.
All up, if have been thinking about putting an enduring power of attorney in place (so someone can make decisions on your behalf should you become unable to), this Bill provides all the more reason to do it.
Nest Legal Peace of Mind Packages includes enduring powers of attorney (medical and financial), along with a Will and a Binding Death Nomination. You can get started providing instructions via our secure webforms at a time that suits you, then meet for an after hours Skype chat to finalise your documents.