Powers of Attorney in Victoria

An enduring power of attorney lets the principal (the person making the appointment) authorise an attorney to make decisions about financial matters, personal matters, or both. The enduring nature means the power continues to operate after the principal has lost decision-making capacity. Without it, no family member can simply step in; an application to VCAT for the appointment of an administrator (financial decisions) or guardian (personal decisions) becomes necessary, which is slower, more public and significantly more expensive.

The Act distinguishes financial matters (banking, investments, real estate, tax, business decisions) from personal matters (where to live, who to see, what daily activities to participate in). Medical treatment decisions are governed by a separate appointment under the Medical Treatment Planning and Decisions Act 2016 (Vic), discussed in a separate article.

The choice of attorney is the most important decision in the document. The attorney does not need legal or financial training, but they do need to be trustworthy, available, and capable of dealing with banks, accountants and (if relevant) residential aged care providers. They must also be willing — an attorney can decline the appointment, and an unwilling attorney is worse than no attorney at all. Common structures include appointing a single trusted child; appointing two children jointly to provide oversight; or appointing a spouse with a child as successive attorney for when the spouse can no longer act.

The Act allows the principal to impose conditions and limitations and to give instructions. Common examples include requiring attorneys to consult specified family members on significant decisions, prohibiting gifts beyond a stated value, excluding particular assets (such as a family business shareholding) from the attorney's authority, or directing how the family home is to be dealt with on a move into care. These instructions are legally binding on the attorney and provide real protection where there is concern about possible overreach.

The document must be signed by the principal in the presence of two adult witnesses, one of whom must be a person authorised under the Act to witness affidavits (such as an Australian lawyer, justice of the peace or medical practitioner). The witnesses must certify, among other things, that the principal appeared to understand the nature and effect of the document. Attorneys must also sign a statement of acceptance before acting. Defects in execution can render the appointment invalid, which is usually only discovered at the moment it needs to be used — too late to fix.

The Act also provides for a supportive attorney appointment. This is not a transfer of decision-making authority — it is an appointment that allows a trusted person to access information, communicate decisions and help give effect to them on the principal's behalf, while the principal retains the right to decide. It is the right tool for adults with early-stage capacity issues, intellectual disability or cognitive impairment who still want to make their own decisions but need support to do so.

While the principal has capacity, the appointment can be revoked by signing a revocation document and notifying the attorney. After capacity is lost, revocation is more difficult; an interested party can apply to VCAT under the Act for the attorney to be removed and for orders about the principal's affairs. VCAT can also resolve disputes between joint attorneys, between attorneys and family members, and between attorneys and third parties who have refused to deal with them.

People focus on the will, but in many families the enduring power of attorney is the document that matters more day to day. It governs the years in which capacity is failing — the years when bills must still be paid, residential care arrangements made, properties potentially sold, and family relationships are at their most fragile. Putting the document in place while the principal has clear capacity, with attorneys who understand the role and conditions that reflect the family's reality, is one of the most valuable pieces of legal work most Victorians will ever undertake.