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Estate Planning
Estate Planning document

Enduring Power of Attorney (Personal and/or Financial) VIC

Use Cleardocs to create an Enduring Power of Attorney for use in Victoria, Australia. An Enduring Power of Attorney is a legal document that a person uses to appoint someone as their attorney to make personal or financial decisions for them, or both.

$66.00
  • Cleardocs fee incl GST $66.00
Product Benefits
  • Option to appoint attorneys for either financial or personal matters, or both
  • Flexibility to appoint different attorneys for financial and personal matters
  • Flexibility to appoint an alternative attorney in case no attorney is able to act
  • Options to impose conditions on attorneys
  • Extensive online help and local phone support
  • Easy to use question interface
Product Information

What documents are included in the Cleardocs Enduring Power of Attorney (Personal and/or Financial) VIC package?

You will receive:

  • the Enduring Power of Attorney — customised to reflect whether the attorney is appointed to make personal or financial decisions, or both;
  • a Statement of Acceptance of Attorney;
  • a Statement of Alternative Attorney (if applicable);
  • Witness Certificates;
  • an information page outlining the duties of the attorney as provided by the law; and
  • an Establishment Kit explaining what to do next.

When does the attorney's appointment commence?

An attorney's appointment can commence:

  • when the document is signed;
  • when the person appointing the attorney ceases to have decision making capacity for the matters for which the attorney is appointed; or
  • on a certain date.

When you order a power of attorney from Cleardocs, you can select which of the above option applies.

Who is eligible to be appointed as an attorney?

An individual is eligible to be appointed as an attorney under an enduring power of attorney if the individual is a person —

  • who is over 18 years of age;
  • who is not an insolvent under administration;
  • who, if the individual is to be an attorney for financial matters, has not been convicted or found guilty of an offence involving dishonesty; and
  • who is not a care worker, a health provider or accommodation provider of the person appointing the attorney.

What considerations must an attorney take into account?

If a person is appointed as attorney to make decisions on the other person's behalf, then the law says the attorney must, among other things:

  • act in the other person's best interests;
  • act honestly, diligently and in good faith;
  • exercise reasonable skill and care;
  • not use the position for profit;
  • avoid situations in which the attorney has a conflict of interest;
  • not disclose confidential information; and
  • keep accurate records of dealings and transactions entered into under the enduring power of attorney.

Seek legal advice

The Enduring Power of Attorney information here should be considered general in nature, and in no way interpreted as legal advice. You must always seek your own independent legal, accounting and financial advice about your particular situation. The summary on this page is for information purposes only.

Frequently Asked Legal Questions

Cleardocs is not a law firm. So as with all the legal material on this site, the answers to these "frequently asked legal questions" are provided by the law firm Maddocks. Cleardocs does not endorse those answers.

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"Who is who" in these FALQs

The person making the appointment under a Power of Attorney document is referred to as either the "donor" or the "principal" — depending on the document.

Similarly, the person being appointed is referred to as either the "agent" or "attorney".

For the purposes of these frequently asked legal questions, we use the word:

  • "principal" to refer to the person making the appointment; and
  • "attorney" for the person being appointed.

What things are attorneys not permitted to do during their appointment period?

There are a number of things that an attorney in Australia is not permitted to do during their appointment period — for example, they:

  • may not exercise any trusts, powers or discretions vested in the principal;
  • may not perform any non-delegable duties of the principal (such as the role of company director — see Question below);
  • may not make a Will for the principal;
  • may not swear an affidavit in the name of the principal; and
  • may not pass on their powers or duties to another person.

Also as you can read here, there is doubt about whether an attorney can make or renew a binding death benefit nomination under an SMSF.

Can a director of a company appoint an attorney under a Power of Attorney to act in that role on their behalf?

No, a director anywhere in Australia is not able to appoint an attorney to act on their behalf as a company director.

However, this question is often confused with a company's ability to appoint an attorney to act on behalf of a company, which is allowed and provided for under many company constitutions.

Can an attorney make or renew a binding death benefit nomination under an SMSF?

Possibly. The law around this issue is unclear throughout Australia.

The Superannuation Complaints Tribunal has held that it is possible for an attorney to make a binding death benefit nomination on behalf of a principal.

Although there are no laws expressly prohibiting the attorney from making such a nomination, many legal practitioners advise against doing so because of the associated risks. If an attorney makes a binding death benefit nomination in favour of a certain person or persons on behalf of the principal, then the attorney may find themselves subject to a claim by a family member or other person interested in the principal's affairs who may disagree with the nomination.

Because of these risks, many practitioners are of the view that it is a decision which — as with the execution of a Will and the role of a company director — is so personal in nature that it should only be executed by the donor themselves.

It is important to note that a member is required to renew a binding death benefit nomination every three years.

If the principal does wish to give the attorney the power to sign a binding death benefit nomination, despite the risks set out above, a principal could specify that they give their attorney the power to sign their death benefit nomination every three years on their behalf, provided that the nomination reflects their existing nomination or states who is to be nominated and this power is written into the Enduring Power of Attorney document.

Should I consult my health professional when making a medical Power of Attorney?

It is a good idea to consult your health professional when making any Power of Attorney about your future medical treatment. Your health professional can help by clarifying medical terms, and giving you information about various medical conditions and the advantages and disadvantages of various treatments.

If you choose to use your health professional as a witness to you signing your medical Power of Attorney, then they may also be able to give evidence (if needed) about your decision making capacity at the time you made the document.

What happens if an attorney dies or lacks decision making capacity during their period of appointment?

In Victoria, if an attorney dies or lacks decision making capacity during their period of appointment, then their appointment is automatically revoked and will no longer have effect.

If that happens and an alternative attorney:

  • has been appointed under the Power of Attorney document, then the alternative attorney will act in place of the appointed attorney who they are nominated to be an alternative for; or
  • has not been appointed under the Power of Attorney document, then the role of attorney is vacated and the principal is left without an attorney. Maddocks recommends that principals appoint alternative attorneys to guard against this occurrence.

What is the maximum number of attorneys a principal can appoint at one time using Cleardocs?

You can use Cleardocs to arrange for a principal in Victoria to appoint:

  • under the Enduring Power of Attorney (Medical), 1 attorney and 1 alternative attorney; and
  • under an Enduring Power of Attorney:
    • for financial matters, up to 3 attorneys acting jointly and severally and one alternative attorney;
    • for personal matters, up to 3 attorneys acting jointly and severally and 1 alternative attorney;
    • for attorneys acting for both financial and personal matters, up to 3 attorneys acting jointly and severally and 1 alternative attorney; and
    • when appointing separate attorneys for financial and personal matters, 1 attorney and 1 alternative attorney for each type of appointment.

Does revoking one attorney's power also revoke the power of any remaining joint attorneys?

Unless otherwise specified within the Enduring Power of Attorney document, the ending of any power of a joint and several attorney (where there is more than one appointment) does not affect the ability of any remaining joint and several attorney(s) to exercise their power.

If my spouse is my attorney and we get divorced, then does the Power of Attorney arrangement automatically end?

No, if a principal in Victoria has their spouse as their attorney and they get divorced, then the Power of Attorney remains in place.

Therefore, when people get separated or divorced, Maddocks recommends that they review and update their Powers of Attorney and estate planning arrangements.

When are attorney appointments automatically revoked?

Unless an alternative attorney has been appointed, all Power of Attorney documents in Victoria are revoked:

  • if the attorney becomes bankrupt;
  • if the attorney becomes insolvent under administration;
  • if the attorney dies or lacks decision making capacity;
  • if the attorney becomes a care worker, a health provider or an accommodation provider for the principal of an Enduring Power of Attorney;
  • if an attorney for financial matters is convicted or found guilty of an offence involving dishonesty of an Enduring Power of Attorney; or
  • if the principal dies.

Also, in Victoria:

  • Enduring Powers of Attorney are automatically revoked if the principal executes a later one;
  • Enduring Powers of Attorney (Medical Treatment) are automatically revoked if the principal executes a later one;
  • Enduring Powers of Attorney are revoked if the principal executes a Revocation Document or a Revocation of Appointment Document.

What happens if my family or decision-makers disagree with my wishes under my Power of Attorney?

Generally, any specific wishes you have made in your Power of Attorney document will take priority over the wishes of anyone else — including your family and your appointed decision-makers.

Maddocks recommends that you discuss your wishes with your family members and close friends as appropriate. By doing so, you will give them an understanding of your wishes and the reasoning behind them. Usually, this helps make it more likely that they will support your wishes if your Power of Attorney needs to be followed.

How do I make sure that my Power of Attorney is followed?

The people required to implement your Power of Attorney may, at the time, be concerned that your wishes are not properly set out in the document — for example, they may think that:

  • the document is out of date; or
  • that you did not have decision making capacity at the time you made the Power of Attorney.

When the situation relates to medical treatment, the medical practitioner treating you may ask your family members or close friends to provide information to address those concerns. In these situations, there is always a risk that your wishes may not be fulfilled — particularly if your wishes conflict with what the medical practitioner, or those close to you, perceive to be in your best interests. The risk is most likely to occur in an emergency because, in an emergency, the medical practitioner is able to treat you in the way they perceive to be in your best interests — they can do that regardless of what you have set out in your medical Power of Attorney.

Due to these risks, Maddocks recommends that:

  • you regularly review your Power of Attorney documents to ensure that they are up to date — particularly if your health changes significantly;
  • you make your wishes known to your family and closest friends;
  • you provide a copy of your Power of Attorney documents (and any updated versions and revocations) to:
    • your attorney;
    • your health professional;
    • a family member or close friend;
    • your solicitor, if you wish; and
    • your bank, if you wish (in relation to your Enduring Power of Attorney for financial matters); and
  • in relation to your Enduring Power of Attorney for personal matters or Enduring Power of Attorney for Medical Treatment, you ask a family member or close friend to arrange for:
    • a copy of the documents to be given to your hospital or residential aged care facility; and
    • the documents' existence to be noted on your admission form if you are admitted for treatment.

Can I ask someone to sign a Power of Attorney for me?

In Victoria, the law does allow for Enduring Power of Attorney documents to be signed by a person other than the principal at the direction of the principal.

The Cleardocs interface and document package assumes the principal can sign the document and only allows for this scenario.

What are the requirements for witnessing the signing of an Enduring Power of Attorney (Medical Treatment)?

The signing of an Enduring Power of Attorney (Medical Treatment) document must be witnessed by 2 adults. At least one of the witnesses must be unrelated to:

  • the person who gives the power;
  • the agent, guardian or attorney — depending on the document; and
  • any alternative agent, guardian or attorney.

Also, at least one of the witnesses must be a person authorised by law to witness the signing of a statutory declaration under section 107A of the Evidence (Miscellaneous Provisions) Act 1958 (VIC). For example:

  • a justice of the peace or a bail justice;
  • a public notary;
  • an Australian lawyer (within the meaning of the Legal Profession Act 2004); or
  • a member of the police force.

What are the requirements for witnessing the signing of an Enduring Power of Attorney (financial matters, or personal matters or both)?

With the introduction of the Powers of Attorney Act 2014 (Vic), the requirements for witnessing the signing of an Enduring Power of Attorney (financial matters, or personal matters or both) has become more stringent.

The signing must be witnessed by 2 adult witnesses, one of which must be authorised to witness affidavits under section 123C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) or be a medical practitioner.

In addition, both witnesses must not be:

  • an attorney or alternative attorney under the power of attorney;
  • a relative of the:
    • principal;
    • attorney appointed; or
    • alternative attorney appointed; and
  • a care worker or accommodation provider for the principal.

A relative includes any of the following:

  • spouse or domestic partner;
  • child;
  • parent or step-parent;
  • sibling or step-sibling;
  • grandparent;
  • grandchild;
  • uncle or aunt; and
  • nephew or niece.

A care worker is a person who performs services for the principal and receives remuneration for doing so. A care worker does not include a health provider or a person who receives a carer payment or other benefit from the Commonwealth for providing home care for the principal, such as Centrelink payments.

An accommodation provider means a person who, in a professional or administrative capacity, provides accommodation for the principal.

What are 'financial matters' under an Enduring Power of Attorney?

An attorney or alternative attorney under an Enduring Power of Attorney for financial matters, may act on behalf of the principal for any matters relating to the principal's financial or property affairs.

This includes any legal matters that relate to the principal's financial or property affairs but is subject to any limitations that may be set out within the Enduring Power of Attorney document.

Examples of financial matters include:

  • paying rates, taxes or insurance premiums of the principal;
  • carrying on any trade or business of the principal;
  • dealing with land for the principal;
  • making money available to the principal, such as withdrawing and depositing funds from a bank account; and
  • paying any debts of the principal.

What are 'personal matters' under an Enduring Power of Attorney?

An attorney or alternative attorney under an Enduring Power of Attorney for personal matters will be able to act on behalf of the principal for matters relating to the principal's personal or lifestyle affairs.

This includes any legal matters that relate to the principal's personal or lifestyle affairs but is subject to any limitations that may be set out within the Enduring Power of Attorney document.

Examples of personal matters include:

  • whether the principal can work;
  • where the principal is to live and with whom;
  • daily living issues such as diet and dress;
  • who the principal is to associate with; and
  • health care matters.

Please note that if an Enduring Power of Attorney (Medical Treatment) exists, then that document will take priority in relation to health care matters over an Enduring Power of Attorney for personal matters.

What is an 'offence involving dishonesty' in relation to financial matters under an Enduring Power of Attorney?

There is a requirement that an attorney or alternative attorney disclose to the principal whether they have been convicted of an offence involving dishonesty. This only relates to an enduring power of attorney for financial matters.

An offence involving dishonesty is regarded as:

  • any offence that involves dishonesty; and
  • which is punishable by at least 3 months's imprisonment; and
  • whether it is an offence in:
    • this State; or
    • the Commonwealth; or
    • another State or Territory of the Commonwealth; or
    • a foreign State; or
    • a foreign Territory.

If a nominated attorney or supportive attorney for financial matters has a conviction or finding of guilt as set out above, the Cleardocs system will not enable that attorney or alternative attorney to be appointed.

Maddocks recommends that you seek independent legal advice if you wish to appoint an attorney or alternative attorney who has been convicted of such an offence as additional requirements must be satisfied in order to make their appointment legally valid.

What is a 'conflict transaction' in relation to financial matters under an Enduring Power of Attorney?

A conflict transaction is a transaction in which there is or may be a conflict between the:

  • duty of the attorney to the principal; and
  • the interests of the attorney, or a relative, business associate or close friend of the attorney.

This only relates to an Enduring Power of Attorney for financial matters.

Can an attorney under an Enduring Power of Attorney give gifts on the principal's behalf?

Unless specified within the Enduring Power of Attorney, an attorney will not be permitted to give gifts on the principal's behalf unless the gift is to a relative or close friend of the principal's and is of a seasonal nature (such as Christmas) or for a special event (such as a birthday).

The gift must be reasonable and have particular regard to the principal's financial circumstances.

Your attorney must keep written records of any gift made and must specify the amount of the gift and to whom the gift has been made.

What is 'decision making capacity' for the purposes of Enduring Power of Attorney documents?

A principal must have decision making capacity in order to create a legally effective Enduring Power of Attorney (financial or personal or both) document.

Similarly, an attorney and alternative attorney must have decision making capacity when they accept their roles and throughout the period that they are acting as an attorney or alternative attorney.

Some of the factors to consider in determining whether a person has decision making capacity includes an ability to:

  • understand the information relevant to making a decision;
  • understand the effects of making such a decision;
  • retain such information to the extent necessary to make a decision;
  • use or weigh that information as part of the process of making the decision; and
  • effectively communicate their decision.

It is assumed that a person has decision making capacity unless there is evidence to the contrary. If you are unsure whether the principal, an attorney or alternative attorney has decision making capacity, please seek advice from a medical practitioner.

What does 'legal matters' mean under an Enduring Power of Attorney?

Legal matters, in relation to a principal under an enduring power of attorney appointment, means:

  • use of legal services for the principal's benefit; or
  • bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim before or after a legal proceeding or hearing starts.

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