Advice for supportive attorneys
Supportive attorney appointments are about promoting autonomy and dignity for a person who is able to make various decisions themselves provided they have support to make and give effect to those decisions.
The person who makes the appointment (known as the principal) gives their supportive attorney(s) powers to access information from organisations (such as hospitals, banks and utility providers), to communicate the principal’s decisions to third parties and/or to give effect to the principal’s decisions.
When the role starts
The principal will have set out in the appointment form when the appointment starts. If the principal hasn’t set out when the appointment starts, it begins immediately the appointment is made.
Types of decisions the supportive attorney can support the principal to make
The principal will have specified on the appointment form the types of decisions that their supportive attorney is able to support them to make. These can be decisions about:
- financial matters
- personal matters
- both personal and financial matters
- specific personal, financial or other matters.
Financial matters are any matter relating to the principal’s financial affairs or property affairs.
Examples of financial matters are:
- paying expenses
- withdrawing money from or depositing money into an account with a financial institution
- paying rates, taxes and insurance premiums or other outgoings for the principal’s property.
Financial matters include any legal matter that relates to the financial or property affairs of the principal.
Personal matters are matters relating to the principal’s personal affairs and lifestyle affairs.
Examples of personal matters are:
- health care matters
- access to support services
- where and with whom a person lives.
Personal matters include any legal matter that relates to the principal’s personal and lifestyle affairs.
Read more examples of financial and personal matters.
What types of powers
The appointment form will list the types of powers that the principal chose to give their supportive attorney(s).
These can be:
- information power
- communication power
- power to give effect to decisions.
The information power means the supportive attorney can access collect or obtain personal information about the principal from any person, or assist the principal to access, collect or obtain this information. The information must be relevant to a supported decision and information that may lawfully be collected or obtained by the principal.
The communication power means the supportive attorney can communicate any information about the principal that is relevant or necessary to the making of or giving effect to a supported decision or communicate, or to assist the principal to communicate, a supported decision of the principal.
The power to give effect to decisions means the supportive attorney can take any reasonable action or do anything that is reasonably necessary to give effect to a supported decision. However, this authority does not include giving effect to decisions about a significant financial transaction.
Significant financial transactions include:
- making an investment for the principal or continuing an investment of the principal, including taking up rights to issues of new shares or options for new shares to which the principal becomes entitled by the principal’s existing shareholding
- undertaking any real estate transaction for the principal
- dealing with land on behalf of the principal including taking out a loan on behalf of the principal or giving a guarantee on behalf of the principal
- undertaking a transaction for the principal involving the use of the principal’s property as security for an obligation
- buying and selling substantial personal property on behalf of the principal.
A supportive attorney does not have authority to give effect to decisions about any of these types of transactions.
There are two exceptions to this rule.
One exception is giving effect to a decision (of the principal) to invest or continue to invest an amount that is not more than $10,000 in total if it is in one or more interest bearing accounts of an authorised deposit-taking institution, within the meaning of the Banking Act 1959 (Cth). The Australian Prudential Regulation Authority website has a list of ‘authorised deposit-taking institutions’: www.apra.gov.au
The second is entering into a residential tenancy for a premises in which the principal lives or intends to live.
The duties of the supportive attorney
A supportive attorney must:
- act honestly, diligently, and in good faith
- exercise reasonable skill and care and
- discuss anything about a supported decision with the principal in a way the principal can understand and that will assist the principal to make the decision.
Conflict of interest
A supportive attorney must avoid acting where they have or may have a conflict of interest.
The law recognises that this is not always possible because the principal and supportive attorney may have a close relationship or connection. However, if the supportive attorney acts to support the principal where they have a conflict of interest, they must make sure that the interests of the principal are the primary consideration.
Supportive attorneys must not use their role for profit
A supportive attorney must not use the position for profit. This means that a supportive attorney cannot receive any payment for supporting the attorney. They are acting in the role voluntarily.
Supportive attorneys who dishonestly obtain a financial advantage can be charged with a criminal offence
A supportive attorney can be charged with a criminal offence under the Powers of Attorney Act 2014 if they dishonestly use or obtain their supportive attorney appointment:
- to obtain financial advantage for themselves or for another person or
- to cause loss to the principal or another person.
An attorney or person found guilty of committing this offence can be sentenced to up to 5 years imprisonment and/or fined a maximum of 600 penalty units (more than $88,000).
The Guardianship List of the Victorian Civil and Administrative Tribunal can give an advisory opinion. If a supportive attorney is unsure how to comply with their obligations as a supportive attorney, they can seek the advice of VCAT. VCAT is less formal than a court and holds hearings around Victoria. VCAT does not charge a fee. Contact OPA’s Advice Service for advice and further information about the role of VCAT.
How a supportive attorney resigns
If a supportive attorney wants to resign they need to complete a ‘Resignation of supportive attorney form’ (see right menu). The supportive attorney doesn’t need to sign this form in front of a witness.
After completing the form, the supportive attorney needs to take reasonable steps to inform the principal and any other supportive attorneys or alternative supportive attorneys. However, even if they don’t do this, they will still have resigned and will no longer be a supportive attorney .
This material is provided for general information only. Please see the Disclaimer on OPA's website for more details.