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How to make a power of attorney

Information about what is needed to make a valid power of attorney deed document.

Decide which power of attorney you need

Each power of attorney (POA) has a specific form. The form has to be filled out and signed by the principal and accepted by the attorney.

The forms required to make any of the power of attorney arrangements are available on the Office of the Public Advocate’s website, along with helpful instructions as to how to fill them out correctly: Power of Attorney Forms.

See Forms.

Choose the right person

It is really important to choose the right person for the job. The person must be over 18. They do not have to be a family member. It must be someone that the principal trusts to act in their best interests. Think carefully, if the person is much older than the principal, they may not be likely to be able to act as an attorney when the time comes.

If the principal is choosing a person to take care of their financial decisions, it may also be sensible to choose a person who is either good at figures or who is well organised and who understands what the donor wants. It could be an accountant or lawyer, although expect that they will charge a fee for doing this work.

The principal should also discuss their plans with the person they are thinking of choosing, to make sure that they are happy to take on this responsibility.

See Office of the Public Advocate (OPA)—Take control(opens in a new window).

Should more than one attorney be appointed?

Multiple powers of attorney can only be appointed for some powers of attorney.

More than one person can be appointed for a General enduring POA, a Supportive POA and a General non-enduring POA.

How should the attorneys make decisions?

If more than one power of attorney is appointed, the principal must also decide whether the attorneys are to make decisions:

  • jointly (both have to agree for a decision to be valid)
  • jointly and severally (either attorney can make a decision)
  • majority (decision have to be made and agreed to by a majority of appointed attorneys)

For example, if one of the attorneys lives interstate or travels a lot, it may be impractical to get agreement from both of them, this may be important if the decision needs to be made urgently.

Think about an alternative person

Even if only one attorney is appointed, the principal can still appoint one or more people to act as a back-up, to act if the chosen person is no longer able to act or no longer wants to.

There is no need to speak with a lawyer to make a power of attorney. However, it is always a good idea to get independent legal advice first.

How to make the document legally valid

The formalities required to make a power of attorney legally valid depend on the type of power of attorney. The differences are listed below:

1. Making a general non-enduring power of attorney

A general enduring power of attorney is the easiest one to formalise.

The donor fills out the form with:

  • the date
  • their details and
  • the details of their attorney(s) and then signs at the bottom.

The prescribed form is set out in the Schedule of the Powers of Attorney Act 2014 (Vic)(opens in a new window).

See also Office of the Public Advocate (OPA)—General power of attorney(opens in a new window).

Warning: If the donor has not specified a starting time/event on the form their attorney’s powers will be taken to have come into effect as soon as they sign.

For details of this power see—Appointing a temporary financial or legal decision maker.

Signing on behalf of the principal

It is possible for someone else to sign the document on behalf of the principal if:

  • this is done in the presence of the principal, and
  • the principal directs the person to sign.

If signed by another at the direction of the principal there must be 2 other people present to witness the signature. Both witnesses must also sign the document.

See s. 11—Powers of Attorney Act 2014 (Vic)(opens in a new window) and Appointing a temporary financial or legal decision maker.

Proof of power to act

To prove that an attorney has power to act on behalf of the principal, the attorney needs to provide a certified copy of the power of attorney document. The certification must be carried out according to the Act.

See s. 16(4)—Powers of Attorney Act 2014 (Vic)(opens in a new window).

2. Making an enduring power of attorney

An enduring power of attorney (financial) has a more complex procedure. The principal must fill out the form in the same way as they would for a general power of attorney.

Note: Do not sign the document until the witnesses are present. It needs to be signed in front of witnesses.

Witnesses

To be legally valid the form must also be signed by 2 adult witnesses and then formally accepted by the person or people who the principal wants to appoint as attorney. At least one of these witnesses need to be qualified to sign an affidavit in Victoria or to be a medical practitioner.

See Witnessing documents—Affidavits.

Who can be a witness?

The witnesses have to comply with special conditions. The witnesses cannot:

  • be under 18
  • also be the principal or anyone who the principal is appointing as an attorney
  • be related to the principal or to the attorney, or
  • be a care worker or accommodation provider for the principal.

Both witnesses must sign the ‘certificate of witnesses’ after they have seen either the donor or a person acting on behalf of the donor sign the enduring power of attorney (financial) form.

At least one of the witnesses must have the legal power to witness the signing of affidavits or be a medical practitioner. The Department of Justice and Regulation has a list of the various professions that are able to witness affidavits.

See:

What are the witnesses witnessing?

The witness is not just making sure that the person is signing the document, they also have to be satisfied that the principal is doing this without any pressure, that this is voluntary and that the principal either has legal capacity or appeared to understand the document that they were signing.

See What is capacity? and s. 36—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Attorneys must accept the responsibility

The attorneys must then formally accept their appointment. They do this by signing and dating the ‘statement of acceptance’. This can be done at a later date.

Dates, conditions and limitations

The principal can specify when they want their attorney's powers to start and end on the power of attorney form.

If no start time or event is specified, the attorney’s powers will start as soon as the formal requirements (signing and witnessing have been complied with).

If no end time or event is specified the attorney’s powers will continue to operate until the power of attorney is changed or cancelled, or until the donor dies, or the attorney becomes bankrupt, resigns or is removed by VCAT or the Supreme Court.

The attorney can also place limitations or conditions on their attorney’s powers by writing them on the power of attorney form. For example, the donor might write: ‘I authorise my attorney to withdraw money from my bank account from 07/9/20 to 14/9/20.’ The attorney’s powers would then be limited to that condition over that period of time.

The attorney can be asked for evidence, for example a medical certificate, stating that the principal lacks capacity.

See ss. 4 10, 39, 101—Powers of Attorney Act 2014 (Vic)(opens in a new window).

More information

Legislation

Power of Attorney Act 2014 (Vic)

  • s. 10—when a non-enduring power of attorney is exercisable
  • s. 11—how should a non-enduring power of attorney be executed
  • s. 35—who can be a witness?
  • s. 36—certification of witness signing
  • s. 39—when an enduring power of attorney is exercisable
  • s. 39(4)—an attorney acting may be asked for evidence that the principal has no decision-making capacity
  • s. 101—when does a supportive power of attorney begin

See Powers of Attorney Act 2014 (Vic)(opens in a new window).

Evidence (Miscellaneous Provisions) Act 1958 (Vic)

  • s. 123C—people who can take affidavits

See Evidence (Miscellaneous Provisions) Act 1958 (Vic)(opens in a new window).

Reference

Office of the Public Advocate

The Public advocate site has forms, fact sheets and kits to help explain the formal process of making these powers of attorney.

See:

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