Powers of attorney changes coming – Victoria
Powers of attorney changes coming
At long last the changes to powers of attorney in Victoria are nearly here. The Powers of Attorney Act 2014 received royal assent in August and is scheduled to come into operation on 1 September 2015 unless proclaimed earlier.
The Act consolidates the provisions for non-enduring (general) powers of attorney, enduring powers of attorney and a new appointment, that of supportive attorney. It repeals the requirements of an enduring power of guardianship and provides that appointments for personal or lifestyle matters are made as enduring powers of attorney. Powers made before the commencement of the Act will continue to have effect.
Below are some of the changes to the enduring powers of attorney the Act brings in.
- The donor of a power is referred to as a principal.
There are new principles for acting as an attorney.
The meaning of decision making capacity in section 4.
A description of matters for which a power cannot be given.
Allowing attorneys to be appointed to act by majority or severally as well as the current arrangements of jointly or joint and severally.
Care workers or accommodation providers for the principal cannot be witnesses.
The attorney or alternative attorney‘s signature on the statement of acceptance must be witnessed if the attorney is not a trustee company.
The statement of acceptance is worded differently.
A power of attorney may be used even if any specified time for its operation has not been reached if the principal loses decision making capacity.
Unless the power of attorney specifies how it is to be revoked, it has to be formally revoked by signing an instrument of revocation which has to be witnessed in the same way as creating the power. This means it must be witnessed by two people, one of which must be authorised to witness affidavits or a medical practitioner. It can no longer be revoked orally by the principal.
The power of attorney will also be revoked if the attorney becomes a care worker, a health provider or an accommodation provider for a principal or where the attorney has the power to deal with financial matters and is convicted or found guilty of an offence involving dishonesty.
There are specific provisions on how gifts can be given.
The Supreme Court or VCAT may order the attorney compensate a principal for loss caused by the attorney breaching the Act.
There are a range of offences created by the Act.
Source LPLC