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Supportive decision-makers

Information about how a person can get help to make difficult decisions from a power of attorney.

A person (principal) may appoint someone (an attorney) to help them to make decisions related to their personal and/or financial needs. Decisions made have to be those of the principal, the supportive decision-maker cannot simply decide for the principal.

The decisions have to be lawful. They must also be made without coercion, intimidation or by using undue influence.

Supportive decision-makers cannot be paid for their support.

See Part 7 and ss. 85(3), 90(2)—Powers of Attorney Act 2014 (Vic)(opens in a new window).

When do these powers begin and end?

The principal has to make it clear in the document when they would like the power to begin. If the date or occasion is not specified, then the power will begin when the document is signed.

These powers can be exercised by the attorney until the principal loses capacity to make the relevant decisions themselves, even with their attorney’s support. The principal will need to have enduring powers of attorney in place to prepare for this possibility.

See ss. 101, 102—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Who can appoint a supportive attorney?

To appoint a supportive decision-maker the principal has to:

  • be over 18
  • have capacity to make the appointment.

See s. 96—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Demonstrating capacity of the supportive attorney

The principal has to be able to show that they understand the information that is relevant to the decision and the effect of that decision by understanding:

  • that they will be able to make decisions with support
  • that they can choose a person to help them to make decisions
  • that decisions made are their own decisions (not the attorney’s)
  • when the appointment begins
  • that they can revoke the appointment at any time (while they have capacity to do this).

See s. 87—Powers of Attorney Act 2014 (Vic)(opens in a new window).

How many supportive attorneys can be appointed?

The principal can appoint more than one person to support their decision-making. Each supportive attorney can act separately. If multiple attorneys are appointed the principal can state in the attorney document which decisions they would like each of the attorneys to help with. For example, they may ask one person to help with financial decision and another to help with personal, lifestyle decisions.

See s. 86(2), 4(1)(a), 93—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Appointing alternative supportive attorneys

A principal can choose to appoint one or more alternative supportive attorneys. They can specify in the document under what circumstances the alternative attorney is to act. If this is not specified, the alternative can begin to act when the first appointed attorney:

  • dies
  • loses capacity for matters specified in their appointment, or
  • is unwilling or unable to act.

They may also act is the appointment for the first supportive attorney is revoked.

If more than one alternative supportive attorney is appointed, then the attorneys will usually act jointly unless otherwise specified. An alternative supportive attorney can also be appointed as an alternative in more than one power of attorney.

See s. 93—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Who can be a supportive attorney?

To be eligible to be appointed as a supportive decision-maker the person has to be:

  • over 18, and
  • solvent (that is, they cannot be bankrupt).

If supporting with financial decisions

Further conditions apply if the person is to provide support with financial decisions. The person must not have been found guilty or convicted of an offence of dishonesty unless:

  • they have disclosed this to the principal, and
  • this information is included in the supportive attorney document.

See s. 91—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Duties of a supportive attorney

A supportive attorney must:

  • act honestly
  • exercise reasonable skill and care
  • not use their position for profit
  • avoid acting where there may be a conflict of interest (and if acting where a conflict may exist) must make sure that the principal’s interests are the primary consideration, and
  • must discuss anything about a supported decision in a way that the principal can understand that will help them to make the decision.

See s. 90—Powers of Attorney Act 2014 (Vic)(opens in a new window).

Powers of a supportive decision-maker

The principal may decide to give their supporting attorney the power to:

  • collect lawful and relevant information about the principal
  • disclose personal information about the principal (if relevant to their role) or for any other lawful reason
  • communicate information about the principal that is relevant or necessary to help the principal make a decision
  • communicate or to help the principal to communicate a supported decision, and
  • act to give effect to a supported decision (but not a significant financial transaction).

What is a significant transaction?

A significant transaction of more than $10,000 that involves:

  • making or continuing an investment (including share transactions)
  • real estate transactions (excluding residential tenancy, that is where the principal will live)
  • dealing with land
  • borrowing money
  • giving a guarantee
  • doing something involving the use of the principal’s property as security, or
  • buying and selling substantial property on behalf of the principal.

See s. 89(3)—Powers of Attorney Act 2014 (Vic)(opens in a new window).

More information

Legislation

Power of Attorney Act 2014 (Vic)

  • Part 7—supportive attorney appointments
  • s. 4—meaning of decision-making capacity
  • s. 86—who may make a supportive attorney appointment?
  • s. 87—information power
  • s. 88—communication power
  • s. 89—powers about giving effect to decisions
  • s. 90—duties and obligations of supportive attorney
  • s. 91—who is eligible to be appointed as a supportive power of attorney
  • s. 92—appointing more than one supportive attorney
  • s. 93—appointing an alternative supportive power of attorney

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

Updated