Legal update

The Powers of Attorney Act 2014 (POA Act) commences today. This Act does not affect medical powers of attorney nor does it invalidate powers of attorney that are valid under previous law. It instead:

  1. defines ‘decision making capacity’
  2. lists the principles by which attorneys should carry out their duties
  3. defines the scope of the attorney’s responsibilities
  4. consolidates the enduring power of attorney (financial) and enduring power of guardianship into a single ‘enduring power of attorney’ that addresses both finances and lifestyle issues
  5. creates the ‘supportive attorney’ role

The aim of the POA Act is to afford principals greater protection. Under the new legislation there must be evidence of incapacity otherwise a person is presumed to have the power and ability to make decisions. As an additional measure, one of the witnesses to the enduring power of attorney must be a medical practitioner or an eligible witness to an affidavit.

Changes in jurisdiction and penalties will also reinforce principals’ rights. The Victorian Civil and Administrative Tribunal (VCAT) is empowered to oversee arrangements and attorneys who abuse their position will now face increased criminal penalties.

To assist the principal further, the POA Act introduces the supportive attorney. In this role, a person is authorised to:

  1. obtain information that the principal needs to make a decision
  2. communicate the principal’s decision
  3. assist the principal in taking action [except in relation to significant financial decisions, s89(2)]

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