At some point in your life, you may be faced with an event – such as an accident or illness – that leaves you incapacitated and unable to make decisions for yourself. An Enduring Power of Attorney (“EPA”) allows you to appoint a person (or multiple people) to make financial decisions and personal (also known as lifestyle) decisions for you if you can’t do this yourself or just want some assistance.
With an EPA, the person giving the power is called the ‘Principal’ and the person who is granted the power to act is called the ‘Attorney’.
The EPA is a flexible document that allows you to decide who to appoint as your Attorney/s, what decisions they can make, and when they are able to begin making decisions on your behalf.
EPAs in Victoria are covered by the Powers of Attorney Act 2014 (Vic), which commenced on 1 September 2015. The new legislation didn’t invalidate EPAs that were already in place when it commenced. The old EPAs, however, did not include the power to make decisions about personal/lifestyle matters as this was previously covered by a Guardianship document. Accordingly, if you have an old EPA and don’t have a Guardianship document, it may be beneficial to make a new EPA to give your attorneys the authority to make decisions about personal/lifestyle matters in addition to financial matters.
1. Who can I appoint as my attorney?
You can appoint one or multiple eligible people to make decisions on your behalf. You can also appoint alternate Attorney/s to act in case your first-named Attorney/s are unable or unwilling.
A person is eligible to be an attorney if they are:
- 18 years of age or older
- not an insolvent under administration
- if being appointed for financial matters, either:
- not convicted of an offence involving dishonesty; or
- convicted of an offence involving dishonesty, and has informed the Principal of this and recorded this fact in the EPA
- not a paid care worker for you (not including a person who receives a carer payment)
- not a professional health provider for you
- not a professional accommodation provider for you
Granting decision-making power to a person has enormous implications for your legal, personal and financial well-being, so it is absolutely crucial that you appoint someone who is trustworthy and preferably is familiar with your personal preferences.
When you are appointing multiple Attorneys, you can specify how they must make decisions. For example, you might require that they make decisions jointly (all in agreement), by majority, or severally (meaning any one of your Attorneys can act independently).
2. What types of decisions can my Attorney make on my behalf?
You can authorise your Attorney to make various decisions on your behalf, including:
- Financial decisions: includes all financial decisions such as paying your bills, managing your bank accounts and investments, buying or selling real estate and any other dealing with your assets,.
- Personal/lifestyle decisions: includes all lifestyle decisions such as where you live, who can spend time with you, what activities you participate in and, if necessary, what you eat and wear.
- Specific personal and or financial decisions: may include powers to do certain things such as “manage my rental properties while I am overseas”.
The Powers of Attorney Act 2014 also provides limits on what an Attorney can do on your behalf:
| You can allow your attorney to | Your attorney cannot |
| ✓ Decide where you live | ✘ Make or revoke a Will or EPA on your behalf |
| ✓ Decide who you see | ✘ Medical decisions |
| ✓ Pay your bills | ✘ Act in your place as a company director |
| ✓ Sign a contract to buy or sell property | ✘ Enter into or dissolve a marriage |
| ✓ Manage your investments | ✘ Vote for you |
3. Can I provide directions or place restrictions on my Attorney?
In addition to choosing what kinds of decisions your Attorney can make on your behalf, you can place restrictions on their decision-making power or give them certain directions.
For example, you can:
- Authorise your spouse who is acting as your Attorney to use your money for their own benefit (which would usually be forbidden as a conflict transaction)
- Authorise your Attorney to use your money to take care of your children
- Direct your Attorney to renew any superannuation binding death benefit nominations you have in place
4. When does my Attorney start making decisions on my behalf?
You can choose when your Attorney can start acting on your behalf. For example, you could have your EPA take effect:
- Immediately on the date the EPA is signed
- At a later date, for example “when I am overseas from 5 June to 5 July this year”
- Upon the occurrence of a later event, for example, if a doctor certifies that you have lost capacity, or if you later give your Attorney written authorisation to commence acting
Ordinarily, people will elect for their EPA to commence only at the point they lose capacity or give written authorisation. This is because allowing somebody to make decisions on your behalf while you still have capacity can be confronting and may carry unnecessary risk.
A person no longer has capacity if they are unable to understand or retain information relevant to a decision, cannot use or weigh information as part of making a decision, or cannot communicate their decision or their views and needs about a decision in any way.
5. What happens if I don’t appoint an Attorney or my Attorney refuses to act?
If you lose capacity and have not appointed an Attorney, an application would need to be made to Victorian Civil and Administrative Tribunal (VCAT) to appoint somebody as your Guardian and/or Administrator. One or several people can apply to VCAT, and they may or may not be the people you would have chosen to act on your behalf. If there is disagreement about who should be appointed VCAT may appoint an independent administrator such as State Trustees.
6. Can I revoke my Enduring Power of Attorney after I have made one?
You can revoke your Enduring Power of Attorney at any time when you have capacity to do so. The law states that if you have capacity to make an EPA for a matter, you also have capacity to revoke an EPA for that matter. This does mean, however, that if you lose capacity you no longer have the ability to revoke an EPA and whoever you appointed will continue to have authority to act. In that case, any change would require an application to VCAT. For this reason, while you have capacity it is important to update your Enduring Power of Attorney promptly if your circumstances change and you no longer want your named Attorneys to act for you.
Other articles in the Incapacity Series
- The Incapacity Series: The Importance of Planning Ahead
- Enduring Powers of Attorney: What if I can’t make decisions for myself?
- Appointments of Medical Treatment Decision Maker: What if I can’t make medical decisions for myself?
- Guardians and Administrators: What if I lose capacity and haven’t appointed anyone to make decisions for me?
- Statutory Wills: What if I lose capacity to make a Will?
How can Novum Law Group assist you?
If you have any questions about Enduring Powers of Attorney or need to discuss your estate planning, our Wills & Estate Planning team would be glad to assist you. Please call us on 9063 0300 or send us an email to discuss with one of our lawyers, or click here to make an appointment.
Authors
Sheredyn Legg
