WHAT IS A POWER OF ATTORNEY?
Powers of attorney are legal documents that let you appoint someone to make certain decisions for you, or support you in making and giving effect to your decisions. These documents can be temporary and for a fixed period of time, or indefinite.
Enduring powers of attorney continues even when you are unable to make decisions and are an important estate planning tool. Supportive attorney appointments are designed to promote the right of people with disability to make their own decisions about things that affect them.
The most important decision when preparing a power of attorney is who you appoint as the agent, or the person to make these decisions. In some cases this two or more people who make the decisions together, and in other cases it must be a single person. You should also consider alternative agents, meaning a backup person in case your first choice is unable to act for you.
Different Types of Powers of Attorney
General non-enduring Power of Attorney
A general non-enduring power of attorney is a legal document where someone appoints one or more people to make financial decisions for them. Financial matters include dealing with legal issues that relate to the person’s financial or property affairs.
People make general non-enduring powers of attorney because they are unavailable or want assistance to manage their financial affairs. General non-enduring powers of attorney are often used for a specific purpose and for a fixed period of time. For example, someone needs another person to run their business while they are overseas so they make a power for the period that they are away.
A general non-enduring power of attorney is not a long term estate planning tool. If the person who made the power of attorney loses the ability to make decisions for themselves (for example if you were unconscious in hospital), a general non-enduring power of attorney ceases to operate.
Enduring Power of Attorney
By making an enduring power of attorney you can choose who will make important financial and personal decisions for you, such as where you will live or what happens to your house, if you are unable to make those decisions yourself. The power endures - or continues - if and when you are unable to make decisions. While something could happen to a person of any age that requires an enduring power of attorney this is especially important for elderly people who can sometimes slowly lose their ability to make decisions.
What about medical decisions?
Medical decision making laws changed on 12 March 2018 when the Medical Treatment Planning and Decisions Act 2016 commenced. You can now appoint a medical treatment decision maker with authority to make medical treatment decisions. You no longer make a medical enduring power of attorney to do this.
A medical enduring power of attorney made before the law changed is recognised under the new Act. This means there is no need for legal documents made before 12 March 2018 to be redone.
Medical Treatment Decision Maker
If you are unable to make a medical treatment decision, your health practitioner will need the consent of your medical treatment decision maker before providing treatment to you. Your health practitioner will need to seek their consent, unless it is an emergency, or you have consented to, or refused, the particular treatment in advance in an advance care directive.
There may be times when you want someone to support you to make medical treatment decisions. One way to get this support is to appoint a support person under the Medical Treatment Planning and Decisions Act 2016. Someone appointed as your support person under this Act can support you to make, communicate and give effect to your medical treatment decisions.
Preparation of documents
Powers of attorneys can be completed online through the public advocate office (www.publicadvocate.vic.gov.au) or by a solicitor. We recommend that these documents are completed by a solicitor at the same time you prepare you will. At Ambleside we help you prepare these documents by attending the meeting with your solicitor, and we then review the documents each year with you to make sure they remain appropriate.
If you would like more information on these documents please feel free to contact us.
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