Powers of Attorney

A Power of Attorney is a legal document authorising a person (the appointed attorney) to act on another person’s (the principal’s) behalf. Depending on the type of power given, the appointed attorney(s) may be able to make financial, medical and personal decisions for the principal.

A Power of Attorney is a legal document by which you appoint another person or persons to make decisions for you.

The laws in relation to Powers of Attorney are forever evolving and each state and territory has different legislation that governs this area and in some circumstances, it is appropriate to have both Victorian documentation and for example NSW documentation.

It is important to consider the need for Power of Attorney documentation. If you lose capacity and have not made a Power of Attorney, an application to VCAT has to be made to have one or more persons appointed to make decisions on your behalf.

This means that the person/s responsible for making your decisions are not chosen by you and there are no guarantees that VCAT will appoint who you would want.

You can only make an Enduring Power of Attorney for yourself, and only if you are aged 18 years or older and have decision-making capacity to do so.

In Victoria, the Powers of Attorneys that currently exist are as follows:

  • Enduring Power of Attorney (Financial & Guardianship)
  • Enduring Medical Power of Attorney;
  • General Power of Attorney; and
  • Corporate Power of Attorney.

It is vital that you seek legal advice to ensure that your Power of Attorney documentation is prepared in accordance with the current legislation as each document must specify:

  • What powers to give;
  • When the power starts; and
  • Who to appoint.

Enduring Power of Attorney

An Enduring Power of Attorney appoints a person (or persons) to make decisions on your behalf for the following:

  • Financial matters (e.g. Property affairs and finances);
  • Personal matters (e.g. Accommodation and health care matters); or
  • Both financial and personal matter.

The principal can place limits or conditions on the exercise of the power by the attorney(s) and can give instructions to the attorney(s) about the exercise of the power and we can provide you with advice in relation to same. For example, we sometimes suggest that decision making power for personal matters, namely where you should reside should not be exercised until or if the person making the appointment loses decision-making capacity.

The power endures – or continues – if and when you are unable to make decisions. Therefore, it is very important you choose someone you trust, who understands what is important to you, and is willing and able to act on your wishes as far as it is possible to do so.

If there is no one that you trust who is willing and able to act as attorney, you can appoint someone independent, such as a trustee company for financial matters. Argent Law can advise you on some possible appointment.

Enduring Medical Power of Attorney

1. Who is a Medical Treatment Decision Maker

A Medical Treatment Decision Maker is someone you nominate to make decisions about your healthcare on your behalf, in the event that you suffer an injury or medical condition that affects your ability to make those decisions yourself. To legally empower someone to do that, you appoint the person to be your ‘medical treatment decision maker’.

2. Appointing a Medical Treatment Decision Maker

Appointing a Medical Treatment Decision Maker gives a trusted person (or people) the power to make decisions on your behalf. Anyone over 18 years old and of sound mind can appoint a medical treatment decision maker.

In a medical context, the agreement is specifically about making medical decisions when you are unable to make those decisions yourself, for example, if you are unconscious after an injury.

3.Reasons to have a Medical Treatment Decision Maker

If you have a medical condition that affects your ability to retain new information and make decisions, appointing someone to be your Medical Treatment Decision Maker is a good course of action.

Some examples of conditions that may put you in this position include:

  • acquired brain injury
  • cognitive (thinking) impairment
  • unconsciousness
  • inability to communicate (for example, after suffering a severe stroke)
    dementia.

Other situations where you may choose to appoint a Medical Treatment Decision Maker include:

  • if you do not want life support at a certain point during an illness or after an accident
  • if you are worried you may be injured performing a certain activity, such as playing a high-contact sport.

4. What Medical Treatment Decision Maker means

When you ask someone to be your Medical Treatment Decision Maker, you give them the power to make all the decisions about your healthcare and medical treatment when you are unable to. However, they cannot make financial or property decisions for you. That requires a different type of legal appointment by completing an Enduring Power of Attorney.

Your Medical Treatment Decision Maker is legally bound to act in a way that promotes your personal and social wellbeing. This means that they must consider your medical preferences, values and beliefs in order to make the decision they believe you would have made were you able to.

5.How to appoint a Medical Treatment Decision Maker

You can appoint a Medical Treatment Decision Maker at any time so long as you are over 18 and of sound mind, but their role only begins if and when you lose the ability to make your own medical decisions. You do not have to lose capacity permanently. For example, if you are injured or ill temporarily, your Medical Treatment Decision Maker can make treatment decisions for you until you recover.

To appoint a Medical Treatment Decision Maker you must fill in the appointment form, sign it and have it witnessed by two people. One of the two witnesses needs to be a qualified person, such as a Justice of the Peace. Also make sure that the person who you want to appoint as your medical treatment decision maker is not a witness./p>

To accept the appointment, your Medical Treatment Decision Maker will also have to sign the form in front of your witnesses.

Make sure you keep the original form somewhere safe and tell two or three trusted people where it is. You should also give copies to your Medical Treatment Decision Maker, your doctor and your local hospital. Have your Medical Treatment Decision Maker’s contact details with you at all times in case of emergency, and tell your close family members and friends who your Medical Treatment Decision Maker is.

6.Communicate your views with your Medical Treatment Decision Maker

It is important to talk to your Medical Treatment Decision Maker about your views on and wishes for any medical treatment you may need and make sure they are clear about your choices. This could include surgery, types of medication and life support systems. It can be useful to write down your thoughts, using an advance care directive for example, so your Medical Treatment Decision Maker and the rest of your family and friends are clear about your wishes.

You can also record your wishes in writing for future care and related matters by completing an Advance Care Directive with your Medical Practitioner.

If you want to get the process started, please complete the following questionnaire

Power of Attorney and Medical Treatment Decision Maker Information

General Non-Enduring Power of Attorney

A General Non-Enduring Power of Attorney is a legal document where the person who made the appointment (the principal) appoints one or more people to make financial decisions for a specific purpose and for a fixed period of time.

For example, someone needs another person to run their business whilst they are overseas.

A General Non-Enduring Power of Attorney is not for future planning. If the person who made the power does not have decision making capacity for the relevant financial matters in the future, a General Non-Enduring Power of Attorney does not operate and the attorney cannot make decisions during this time.

Corporate or Company Power of Attorney

A Company Power of Attorney is when a company, in accordance with its constitution, appoints a person to act on behalf of the company.

Your lawyer must review your company constitution and prepare the Power of Attorney document in accordance with it, otherwise the appointment may not be binding.

Argent Law Fee Schedule

To prepare your documentation, we seek to fix your fee as per the schedule below.

Enduring Power of Attorney $220 plus GST
Medical Power of Attorney $220 plus GST
Corporate or Company Power of Attorney $375 plus GST
Non – Enduring Power of Attorney $220 plus GST

Contact us to find out more or arrange an appointment now with our Will Lawyers Melbourne

To learn more about the legal areas our family lawyers can help you with, or to understand your current legal standings; arrange an appointment today. You can also browse our website to learn more about our other services or call us for more information on 03 9571 7444.

Our Will & Estate team

Darby Nunan

SPECIAL COUNSEL

Theresa Elhage

SENIOR ASSOCIATE

Christina Potts

PARALEGAL

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