An enduring power of attorney (financial) is a legal document where you (the donor) give someone (the attorney) the power to make financial and legal decisions for you - like managing your banking, your property or paying bills. Enduring means the power continues (endures) even when you are unable to make these types of decisions for yourself.

How does it work?

• You complete, sign and have witnessed an enduring power of attorney (financial) form - giving power of attorney to someone you choose.
• On the form you can specify the powers you are giving and when they begin, and place conditions on the decisions your attorney can make.
• Your attorney agrees by signing the acceptance section of the form.
• Your attorney's decisions have the same legal force as if you had made them yourself.

Why would I give someone this power?

We recommend everyone have an enduring power of attorney (financial). It is the only way you can have control over who will make decisions on your behalf if you are ever unable to do so yourself. You could lose the capacity to make decisions permanently, such as through dementia or an acquired brain injury from a car accident, or temporarily, by becoming unconscious as a result of an illness.

What type of decisions can an attorney make?

An enduring power of attorney (financial) can make any financial and legal decisions that you can. On the form you can limit or place conditions upon how you want your attorney(s) to carry out their responsibilities. An enduring power of attorney (financial) cannot be used to make medical treatment or lifestyle decisions. For further information about these powers see our fact sheets, enduring power of attorney (medical treatment) and enduring power of guardianship, or Take Control (see below).

Who can appoint an attorney?

You can appoint an attorney if you are over 18 years of age and have the capacity to make the appointment.

What is capacity?

To have capacity is to know what you are doing, to understand the consequences of your actions and to make choices based on your knowledge and understanding. The test for capacity to make an enduring power of attorney (financial) is that you understand:

• The powers of the attorney;
• When the attorney can exercise these powers;
• That you can revoke these powers whilst you have capacity;
• That the power will operate if you lose the ability to make legal and financial decisions;
• Once you lose capacity you will not be able to supervise the use of the powers.

If you do not have sufficient capacity, the Guardianship List of the Victorian Civil and Administrative Tribunal (the Tribunal) can appoint an administrator who can make financial and legal decisions for you. See Administration fact sheet.

Choosing your attorney

An attorney must be over 18 years of age and have the capacity to be your attorney. You can appoint any person or organisation, as long as they agree to take on the role. They should be someone that you trust to manage your affairs, and look after your best interests.

You may choose to appoint more than one attorney. Their power can be exercised:

• jointly (they must make decisions together)
• jointly and severally (they can make decisions together or independently)
• severally (they can make decisions independently of one another); or
• alternatively (the alternative attorney can only make decisions when the first attorney is unable to).

The attorney must accept the appointment in writing.

Responsiblities of the attorney

The attorney must:

• act in your best interests
• wherever possible, make the same decision that you would have made
• keep accurate records of dealings and transactions made under the power
• avoid situations where there is a conflict of interest, and
• keep the donor's property and money separate from their own.

When the donor dies, the enduring power of attorney ends.

Should I pay my attorney?

You do not need to pay your attorney unless you have appointed a professional person or organisation as your attorney.

How do I make an enduring power of attorney (financial)?

An enduring power of attorney (financial) is easy to make. It does not have to be prepared by a lawyer, but if your financial and legal affairs are complex the advice of a lawyer will be helpful. Forms are available from most newsagents, legal stationers and can be downloaded from our website.

Witnesses to the signing of the form have to be assured that you, as donor, know what you are doing (have capacity) in making the power of attorney. There are restrictions upon who can be a witness. If there is any question about your capacity, an independent medical assessment should be obtained.

To help you, the Office of the Public Advocate has produced a do-it-yourself kit called Take Control - A Guide to Powers of Attorney and Guardianship.

What if I change my mind?

You can cancel (revoke) the appointment at any time as long as you understand the nature and effect of revoking the power. You can revoke the power by telling the attorney that their power is withdrawn or by destroying the enduring power of attorney document and any copies. We recommend that you also complete a Revocation of Enduring Power of Attorney form and give a copy to your attorney. See Take Control.

Safeguards

You do not have to register or send the form anywhere. You should keep the original form in a safe pace and keep a certified copy for everyday use.

If an attorney is not acting in your best interests the Tribunal can revoke or suspend the enduring power of attorney. Anyone who has a genuine interest in your welfare can ask the Tribunal to consider the actions of the attorney. The Tribunal operates a 24-hour emergency service and can appoint an administrator to make financial and legal decisions if the power of attorney is cancelled. Contact the Office of the Public Advocate for advice and further information.

Advice for attorneys

For practical advice on your role, see advice for attorneys fact sheet.

If the attorney is unsure what to do in a particular situation, they can contact the Office of the Public Advocate advice service, a community legal centre, a solicitor or the Tribunal for assistance.

The Office of the Public Advocate is an independent statutory office, working to promote the interests, rights and dignity of Victorians with a disability. For more information about guardianship and administration applications, consent to medical and dental treatment, and enduring powers of attorney and guardianship, visit our website or call our advice service.