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Making financial and/or personal decisions—general enduring power

Information about powers of attorney who make financial, legal personal and lifestyle decisions when someone is no longer able to make decisions for themselves.

An enduring power of attorney is a legal document that allows a principal to appoint another person to act as their attorney (decision-maker). The attorney can then make personal, legal and/or financial decisions on behalf of the principal. Their powers depend on what is stated in the document and according to the limits set out in the Act.

A principal must have capacity when appointing an attorney

Unlike a non-enduring power of attorney, an enduring power of attorney continues to be effective even if the principal loses capacity.

An enduring power of attorney is only valid if the principal has capacity to make it. To have capacity to make an enduring power of attorney the principal needs to be able to:

  • understand information that is relevant to the decision and the effect of that decision
  • retain the information long enough to make the decision
  • use that information when they are making the decision, and
  • communicate that decision in some way.

See What is capacity?

When does the attorney start to act?

The principal can specify when their attorney’s powers take effect. They have to write this on the form when they are creating the enduring power of attorney. The principal could decide to make the power start:

  • when the power is made
  • if they cease to have decision-making capacity for the matter(s)
  • at any other time, circumstance or occasion.

It is important to remember that an attorney’s powers will begin immediately if no start time is specified on the form.

See s. 39—Powers of Attorney Act 2014 (Vic)(opens in a new window).

What decisions can the attorney make?

An enduring power of attorney gives the attorney(s) the authority make financial and personal decisions on behalf of the principal subject to any limitations or conditions that the principal sets out in the power of attorney document and under the Act.

Financial matters

Financial matters may include the legal, financial or property affairs of the principal. These may include:

  • making money available for the principal to spend
  • paying expenses for the principal and any dependents
  • carrying on a business
  • performing any contracts entered into by the principal
  • paying rents, taxes, insurance premiums
  • insuring the principal or their property
  • preserving or improving property (painting, mechanical repairs)
  • making investment decisions
  • continuing investments
  • buying or selling real estate
  • dealing with land
  • taking out a loan on property, and
  • depositing or withdrawing money from a bank account.

Personal matters

Personal matters can be any matters that relate to the principal’s personal or lifestyle including a legal matter. The powers that are often given are the same as those of a parent over a child. These may include decisions about the principal’s:

  • living arrangements
  • associates, friends, and contacts (who the principal will have contact with)
  • work such as if they work, where and who their employer will be
  • education or training, and
  • daily living issues such as diet and clothing.

The principal can specify any limitations or conditions on their attorney’s powers they want on the enduring power of attorney form.

See ss. 22, 24, 25—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Limits on decisions that can be made

There are some things that an attorney cannot be given the power to do. A principal cannot authorise an attorney to:

  • make or revoke a Will
  • make or revoke a power of attorney document
  • vote in an election
  • consent to divorce or a sexual relationship
  • decide about the care of a child or children
  • adopt a child
  • enter a surrogacy arrangement
  • consent to making or discharging a substitute parentage order
  • manage the estate after death, or
  • consent to an unlawful act.

The attorney is not able to delegate their power to someone else.

See ss. 26, 25—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Can a principal appoint more than one attorney?

Yes. The principal can appoint more than one decision-maker for an enduring power of attorney. If more than one attorney is appointed the principal can choose which matters they would like each attorney to make decisions about. For example, they could choose one person to make financial decisions and another to make personal decisions, such as where the principal will live.

If the principal wants to choose more than one attorney, they can also choose to have their attorneys act either jointly, severally or jointly and severally. They could also appoint multiple attorneys as majority attorneys. This would mean that the majority would have to agree about each decision to be made.

If the principal appoints more than one attorney but does not specify which type of appointment then each attorney will act jointly.

See s. 30—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Alternative attorneys

The principal may also decide to appoint one or more alternative attorneys who will act in circumstances specified in the power of attorney document. If not specified, the alternative attorney may act if the first attorney who is appointed:

  • dies
  • loses decision-making capacity for the appointed decisions
  • is not willing or able to act
  • has their appointment revoked.

A principal can also appoint alternative attorneys to act in more than one attorney appointment.

See ss. 30, 31, 54—Powers of Attorney Act 2014 (Vic)(opens in a new window) and How to make a power of attorney.

More information

Legislation

Powers of Attorney Act 2014 (Vic)

  • s. 25—attorney is not able to delegate their power
  • s. 26—maters for which power cannot be given under an enduring power of attorney
  • s. 30—appointment of more than one attorney
  • s. 31—appointment of alternative attorneys
  • s. 54—revocation of appointment of attorney

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

Reference

Office of the Public Advocate (OPA)

See Office of the Public Advocate (OPA)—Plan for the future(opens in a new window).

Updated