The Powers of Attorney Act 2014 (Vic) (New Act) consolidates the current law concerning certain enduring powers of attorney in an attempt to achieve a more simplified legal framework in Victoria.
The New Act also provides increased safeguards for people making enduring powers of attorney and sets out clear duties for an attorney acting under an enduring power of attorney.
For your ease of reference, where this article refers to:
There are currently three types of enduring power of attorney:
The New Act will repeal the provisions relating to the Enduring Power of Attorney (Financial) and the Enduring Power of Guardianship and replace them with a single enduring power of attorney.
The New Act does not deal with the Enduring Power of Attorney (Medical Treatment) which will continue to be governed by the Medical Treatment Act 1988.
It is important to know when a principal has decision-making capacity because under some enduring powers of attorney, an attorney's decision-making duties only commence when the principal becomes incapacitated.
The New Act makes it clear that a principal has capacity to make a decision if that person is able to:
For the purposes of the New Act, a principal is presumed to have decision making capacity unless there is evidence to the contrary.
It is important to note that a person may not make an enduring power of attorney under the New Act unless the person has decision making capacity in relation to making the enduring power of attorney. Therefore, caution must be exercised in assessing a person's decision-making capacity at the time of making the appointment, otherwise any decision made by the attorney may be challenged or invalidated.
The New Act also provides guidance to persons acting on behalf of a principal who lacks decision-making capacity. This ensures that the principal is given practicable and appropriate support to still participate in the decision-making process as much as possible in the circumstances.
The New Act requires an attorney who is acting on behalf of a principal who does not have decision-making capacity to:
The New Act prescribes the following duties of an attorney appointed under an enduring power of attorney:
The penalties for attorneys under the New Act who use their powers under an enduring power of attorney dishonestly to obtain a financial advantage, or cause loss to the principal, are significant, and include a $90,000 fine or up to 5 years imprisonment, or both.
The New Act expressly provides that any Enduring Powers of Attorney (Financial) or Enduring Powers of Guardianship which were in force before 1 September 2015 are not affected by the New Act and continue to be valid.
Therefore, any Cleardocs enduring power of attorney product which is purchased and correctly executed, witnessed and certified in accordance with the relevant current law by the end of 31 August 2015 should remain valid under the New Act.
The current Cleardocs enduring power of attorney documents will not be available for purchase from 29 August 2015 in order to minimise the risk of a customer executing their enduring power of attorney after 1 September 2015.
The New Act provides that an enduring power of attorney must be in the prescribed form. The prescribed form under the New Act has not yet been published. Once the prescribed form has been published, Cleardocs will provide an enduring power of attorney product that complies with the New Act.
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Commercial team.
You can read earlier ClearLaw articles on a range of topics.
 Section 70 of the Powers of Attorney Act 2014 (Vic).
Julian Smith is a partner in the Maddocks Commercial team.
Julian advises extensively in the following areas:
Julian advises clients ranging from public companies servicing the wholesale financial services market to high net worth individuals and their advisers.
Julian has been with Maddocks since undertaking articles in 2001.
The legal information and commentary on this site is general only. Documents ordered through Cleardocs affect the user's legal rights and liabilities. To assess their suitability for the user, legal accounting and financial advice must be obtained.
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.