Financial Powers of Attorney
1. Enduring power of attorney (financial)
An enduring power of attorney (financial) is a legal document that appoints one or more people to make financial and legal decisions for you.
Unlike a general power of attorney, it continues to be legal even if you are unable to make these decisions yourself. This means that someone you choose can take control of your financial and legal affairs if you ever lose capacity.
When making decisions for you, your attorney must:
- act in your best interests
- wherever possible, make the same decision that you would make
- keep accurate records of dealings and transactions
- avoid situations where there is a conflict of interest
- keep your property and money separate from their own.
2. Appointing more than one decision-maker
There are two options to appoint more than one decision-maker. You can choose whether they make decisions:
- jointly, which means they must all agree to any decisions and every document must be signed by all attorneys
- jointly and severally, which means that any of them can make a decision and sign documents together or without the others.
Appointing more than one decision-maker can help you get a balanced outcome. For example, if you choose someone who knows what you would want but they do not have financial knowledge, you could have a second attorney who is a financial expert, such as an accountant.
If you appoint two people jointly it can slow down the decision-making process. Also, if they cannot come to an agreement about what to do, your attorneys would have to apply to the Guardianship List of the Victorian Civil and Administrative Tribunal to resolve the disagreement. Appointing your attorneys jointly and severally may avoid such problems and delays.
You can also appoint an alternative decision-maker so that if the first person is unable to carry out the role there is someone else who can step in. An alternative attorney can only act if your attorney loses capacity, dies or if they are absent for a period of time, such as when they are travelling overseas.
3. When do my attorney’s powers begin?
Your attorney’s powers only begin after they have signed the statement of acceptance on the form.
You can nominate when your attorney’s power starts. On the form you are asked if you want the attorney to begin:
- immediately
- on a specified date
- on a specified occasion.
If you do not select one of these options the power begins immediately.
If you choose to start it immediately, your attorney can act even if you still have capacity, but they must act in accordance with your directions. You can also continue to make decisions yourself while you have capacity.
If the power comes into effect once you have lost capacity, the attorney may have to prove that you have lost capacity. This usually requires some medical evidence. It is wise to give your attorney permission to speak to your doctor about your health so they can get this evidence. A consent form for your doctor to disclose information about you is available on the Office of the Public Advocate’s website.
4. Limiting your attorney’s powers
You can limit how you want your attorney to carry out their responsibilities and place conditions on the decisions they make on your behalf.
You can include instructions about what you would like your attorney to do and they must act on these. You can also set out your wishes, but these are not binding on the attorney. If you have large capital assets, such as property or shares, you can leave clear instructions about how your attorney should manage, distribute or dispose of these assets. It is better not to place too many restrictions on your attorney’s power, as this may make it difficult for them to make decisions on your behalf. If you choose to impose conditions or restrictions it is recommended you get legal advice. If you do not specify any limits, your attorney will be able to make any financial or legal decisions on your behalf from the time the power of attorney begins until it is changed or cancelled.
5. Witnesses
An enduring power of attorney (financial) form must be witnessed by a person who can witness a statutory declaration.
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