For the person appointing an attorney By completing this document, you can give a person of your choice the power to make decisions on your behalf about financial and legal matters.
Because you are the person making or donating the enduring power of attorney, you are referred to as 'the donor'.
What is an Enduring Power of Attorney (Financial)? This is a legal document that appoints another person (or persons) to make financial and legal decisions for you. Unlike a general power of attorney, an Enduring Power of Attorney continues to be valid even if you lose legal capacity in the future. 'Enduring' simply means that the power continues even if the person giving it loses the capacity to make decisions. It is useful as a means of ensuring that someone, chosen by you, takes control of your financial and legal affairs if and when you are ever unable to do so yourself.
Why give someone Enduring Power of Attorney? There are some circumstances in which you may be unable to make decisions about matters that concern you. For example, you may be overseas, or you may be too ill.
If you give some one a general power of attorney, for instance, to sign documents for you in your absence, that power will come to an immediate end if for some reason you lose legal capacity to make decisions. This could be very awkward if your attorney is in the process of conducting business for you.
Giving an attorney an enduring power means that the attorney is able to continue to act for you when you have lost capacity to make decisions for yourself.
Can I appoint more than one attorney? Yes. Several options are provided for in the Instruments Act 1958. For example, you may choose to appoint a single attorney, two or more 'joint' attorneys, two or more 'joint and several' attorneys or an 'alternative' attorney.
The appointment of 'joint' attorneys means that all the attorneys can only act if they all agree, and any documents must be signed by all of them.
The appointment of 'joint and several' attorneys means that all the attorneys can act together if they all agree, or any of the attorneys can act and sign documents together or alone. The appointment of an 'alternative' attorney means that an alternative attorney can only act in the event of the death or during the absence or legal incapacity of the attorney for whom the alternative attorney has been appointed.
It is important that your intentions be expressed clearly.
Whom should I appoint as my attorney? You should appoint someone you trust to manage your property and financial affairs in your best interests. Many people choose their spouse or an adult child, but you may prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, State Trustees Limited or a Trustee Company. You should also feel confident that the person or agency is competent to deal with the management decisions that may arise and capable of keeping accurate records of all dealings and transactions. The attorney you choose must be willing to take on the responsibility on your behalf. Your attorney must be over 18 years of age and must not be a bankrupt or insolvent. Should I pay my attorney? You do not need to pay your attorney for the power to be effective. Normally, payment is not made unless a trust company, accountant or solicitor is acting as attorney.
Can I limit my attorney's powers? Yes, you can specify how you want your attorney(s) to carry out their responsibilities to you and any special conditions you want to apply in the decisions they make on your behalf. You can also include particular instructions about what you would like your attorney to do. Your attorney must act in accordance with your instructions.
Once the power to make a decision begins, your attorney will have full control over that decision unless you have explicitly limited that power in this document.
Where you have large capital assets, such as property or shares, you may want to leave clear instructions for your attorney(s) as to how to deal with, distribute or dispose of these assets.
Note: It is better not to place too many restrictions on your attorney's power, as this may make it difficult for your attorney to make decisions on your behalf. If you choose to impose conditions or restrictions on the power you are giving to your attorney(s), it is recommended you seek legal advice from the experienced staff at BJT Legal.
When does the attorney's power begin? You may nominate when your attorney's power is to begin. Under Clause 4 of the Enduring Power of Attorney (financial) form, you should indicate whether you want the attorney to assume power:
immediately, or on a specified date, or on a specified occasion.
If you do not complete Clause 4, the power begins immediately.
Note: Even if you give your attorney power immediately, you may also continue to make decisions yourself while you are able to do so. While you retain capacity, your attorney must act in accordance with your directions.
How long does the power continue? The power continues until it is revoked, or until your death.
How can I be sure that my attorney will act in my interests? While (if ever) you are unable to oversee your attorney's decisions, the Public Advocate, the Victorian Civil and Administrative Tribunal (VCAT) and the Supreme Court have the power to protect your interests. Your attorney may be required to produce a summary of receipts and expenditure or more detailed accounts, and these may be audited. An attorney who does not adequately protect your interests can be removed or replaced.
Can I change or revoke an enduring power of attorney? Yes, you may change it or revoke it at any time, so long as you are capable of understanding what you are doing. In other words, so long as you have the capacity to make an enduring power of attorney, you also have capacity to change it or revoke it.
How can I change or revoke an enduring power of attorney? You can change or revoke an enduring power of attorney in exactly the same way as you can change or revoke a general power of attorney. There are different reasons why you may want to change or revoke your power. Maybe your relationship with the attorney has changed, or your own circumstances are different, and the person you appointed is no longer appropriate for the role. It may be simply that either the attorney or you have moved.
Unlike a general power of attorney, however, it is likely that you will still need to appoint someone new to take control of your finances and legal affairs in the event of your no longer being able to make decisions for yourself.
Remember - this is something that can happen to anyone.
There are a number of ways you can revoke the power. One way is by telling the attorney that their power is withdrawn, and by destroying the Enduring Power of Attorney document and any copies. Another way is by contacting the specialist legal staff at BJT Legal to draft a 'Revocation of Enduring Power of Attorney' and giving a copy of this to your attorney. You should also ask your attorney to return the Enduring Power of Attorney document. It is also a good idea to notify your bank or any other relevant groups, such as financial institutions or businesses, with which your attorney might have been dealing.
Note: Your attorney's actions may be binding unless you notify the attorney that their power has been withdrawn.
If you lose legal capacity in the future, you will not be able to revoke an enduring power of attorney while you lack capacity.
If and when you do not have legal capacity, the Guardianship List of VCAT can revoke an enduring power of attorney if it believes that the attorney is acting improperly or against your best interests.
Is there anything else that will end this power? Yes. These are the circumstances that will bring this enduring power of attorney to an end:
If you die. If you die, the enduring power of attorney is revoked in its entirety. If you make an inconsistent document. This power is revoked to the extent of any inconsistency with any later document you complete. Where the power is inconsistent with a later enduring power of attorney, then the later power overrides the first. If your attorney resigns. Your attorney may resign by giving you a signed notice or by getting leave to resign from VCAT or the Supreme Court. If your attorney becomes incapable. Your attorney's power is revoked if they become incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision. If your attorney becomes bankrupt or insolvent. If your attorney dies.
What are the prerequisites for appointing an attorney? In order to be able to appoint someone with a power of attorney (either general or enduring), the law expects two things of you.
First, you must be 18 years of age or over.
Secondly, you must have sufficient capacity to make the appointment.
Capacity is a legal term that means:
you understand the main consequences of a decision you are able to take responsibility for making a choice, and you are able to make a choice based on the risks and benefits important to you.
This means that at the time of making the appointment of the enduring power of attorney, you must be able to understand things such as:
the sorts of powers the attorney will have, and what sorts of decisions they will have the authority to make when and how they will have the authority to exercise that power the effects that their power could have on you and on the things that are important to you, and what options are open to you to cancel or change the arrangement in the future.
On the basis of understanding these sorts of issues, you then need to be able to make your own decision. This means that you make the decision:
without pressure from anyone else, and weighing up the pros and cons on the basis of what matters most to you.
When you make a decision in this way, you have made an informed decision or have given informed consent.
Who is involved in completing this document? At least four people:
You, as the donor
If you have a physical disability that prevents you from signing, you may instruct another person to sign for you, but you must give the instruction in front of the witnesses, and the signing must be done in your presence. This person must be 18 years old or more, and must not be a witness or your attorney. They must complete the statement beside the place for their signature.
The two witnesses must sign the Certificate of Witnesses
One of the witnesses must be authorised by law to witness the signing of statutory declarations. The following is a list of people who are authorised by law to witness statutory declarations:
a justice of the peace or bail justice a notary public a barrister and solicitor of the Supreme Court a clerk to a barrister and solicitor of the Supreme Court (including a barrister's clerk) the prothonotary or a deputy prothonotary of the Supreme Court the registrar or deputy registrar of the Supreme Court the principal registrar of the Magistrates' Court the registrar of probates or an assistant registrar of probates the associate to a judge of the Supreme Court or the County Court the secretary of a master of the Supreme Court or the County Court a person registered as a patent attorney under Part XV of the Patents Act 1952 (Cth) a member of the police force the sheriff or a deputy sheriff a member or former member of either House of the Parliament of Victoria or the Commonwealth a councillor of a municipality a senior officer of a council as defined in the Local Government Act 1989 a registered medical practitioner within the meaning of the Medical Practice Act 1994 a registered dentist within the meaning of the Dental Practice Act 1999 a veterinary practitioner a pharmacist a principal in the teaching service the manager of an authorised deposit-taking institution a member of the Institute of Chartered Accountants in Australia, the Australian Society of Accountants or the National Institute of Accountants the secretary of a building society a minister of religion authorised to celebrate marriages (not a civil celebrant) a person who holds an office in the Victorian Public Service or a statutory authority that is prescribed as an office to which this section applies a fellow of the Institute of Legal Executives (Victoria)
The witnesses must not be either yourself as the donor, or your attorney. At least one of the witnesses must not be a relative of yours or of the person(s) you appoint as your attorney(s).
The witnesses must sign the Certificate together in your presence and must choose one of the available options by crossing out the option (a) which does not apply:
either (a) that you signed the document freely and voluntarily in the presence of the witnesses or alternatively (a) that the document was signed in the presence of the witnesses by another person at your direction which was given freely and voluntarily
and (b) at the time of signing you appeared to understand what you were doing, that is, you had sufficient capacity.
If a witness is not sure that you understand the nature and effect of the document, they should refuse to sign the document.
The attorney must sign and date the Statement of Acceptance.
Your attorney must be at least 18 years old.
Where can I go for advice? The accredited specialist staff at BJT Legal are pleased to assist if you have any queries about Powers of Attorney.
What happens to this document when it is completed? You should keep the original form in a safe place. BJT Legal is pleased to store such documents free of charge.
If more information is required please feel free to contact:
Andrew Byrne a Specialist in Wills and Estates
BJT Legal, Solicitors, 38 Lydiard Street South, BALLARAT 3350
Telephone (03) 5333 8888 or Email Andrew on firstname.lastname@example.org.