Supportive attorney appointments
Making decisions is an important part of exercising rights. Supportive attorney appointments are a way a person can be supported to make and act on their decisions. The person making the appointment retains decision-making authority.
Supportive attorney appointments are designed to promote the rights of people with disability. However, there can be many reasons why a person may want support to make decisions. While people can be supported informally, making a supportive attorney appointment can be helpful as organisations must recognise the authority of the person in the support role.
A person, known as the ‘principal’, can appoint another person (or people) to support them to make and give effect to their decisions.
The person (or people) the principal appoints are known as the principal’s ‘supportive attorney(s)’.
The principal can give power to the person they appoint to access information from organisations (such as hospitals, banks and utility providers), to communicate their decisions and to give effect to their decisions.
How to appoint a supportive attorney
To make a supportive attorney appointment the principal must be:
- 18 years of age or older and
- have decision making capacity to make the supportive attorney appointment.
Read about what it means to have decision making capacity to make a supportive attorney appointment.
No one else can make a supportive attorney appointment on behalf of another person.
- what types of decisions
- what powers to give the supportive attorney(s)
- who to appoint
- when the appointment starts.
What types of decisions
The principal can give their supportive attorney(s) powers to support them in making and giving effect to their decisions.
This support can be for making decisions about:
- financial matters
- personal matters
- both personal and financial matters, or
- 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 and
- 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 and
- where and with whom a person lives.
Personal matters include any legal matter that relates to the principal’s personal and lifestyle affairs.
What powers to give
The principal may give their supportive attorney powers to support them in making and giving effect to decisions. These powers are:
- information power
- communication power
- power to give effect to decisions.
The principal can authorise their supportive attorney to obtain personal information about them from any person.
They can authorise the supportive attorney to:
- access, collect or obtain this information
- assist the principal in accessing, collecting or obtaining this information.
The information must be:
- relevant to a supported decision and
- information that may lawfully be collected or obtained by the principal.
This power authorises organisations (such as banks, utility providers, and health care providers) to disclose personal information about the principal to their supportive attorney.
This powers also means the supportive attorney can disclose personal information about the principal that is given to them, if it is necessary for them to do so to carry out their role.
The principal can authorise their supportive attorney to:
- communicate any information about the principal that is relevant or necessary to the making of or giving effect to a decision
- communicate, or to assist the principal to communicate, a decision of the principal.
This power means that organisations are able to rely on information provided by the supportive attorney as being information provided by the principal. It also means organisations are able to rely upon what the supportive attorney communicates as being the principal’s decision.
Power to give effect to decisions
The principal may authorise their supportive attorney to:
- take any reasonable action
- 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.
Read the definition of a significant financial transaction.
Who to appoint
The most important decision when making a supportive attorney appointment is choosing who to appoint. Whoever is appointed should be someone the principal trusts, and who respects and values the principal's rights, dignity, autonomy and independence.
The principal may appoint more than one supportive attorney. If more than one supportive attorney is appointed, each supportive attorney acts separately.
The principal specifies in the appointment form the matters for which each supportive attorney is to act.
The person (or people) that the principal appoints need to:
- be eligible to be appointed as a supportive attorney and
- agree to be a supportive attorney.
Read about who is eligible to be a supportive attorney.
The principal can also appoint one or more alternative supportive attorneys for a supportive attorney they have appointed. The alternative supportive attorney must be eligible to be a supportive attorney.
When the appointment starts
The principal (the person making the appointment) can specify in the appointment form when the appointment of the supportive attorney (or attorneys) starts.
This can be:
- from another time, circumstance or occasion.
If the principal does not specify when the appointment starts, it begins immediately the appointment is made.
The principal should complete the ‘Supportive Attorney appointment form’ but not sign it until witnesses are arranged.
If the principal has a physical disability that prevents them from signing the form they may direct another person to sign for them in their presence and in the presence of the witnesses. The person who signs for them must be over the age of 18, not a witness and not a supportive attorney.
Two witnesses who are over the age of 18 years are required to witness the principal signing the form.
One must be someone authorised to witness statutory declarations.
Justices of the Peace are an example of who is able to witness statutory declarations. Justices of the Peace are volunteers who provide document witnessing and certification services to the community both during and outside business hours. They do not provide legal advice. A person who wants a Justice of the Peace to witness a supportive attorney appointment will need to organise another person who is eligible to be a witness to come with them to the Justice of the Peace, because two witnesses are required.
See the Department of Justice & Regulation website to find the closest Justice of the Peace signing station.
See the Department of Justice & Regulation website for a full list of who can witness statutory declarations.
The witnesses must:
- not be a supportive attorney or alternative supportive attorney under the appointment
- not be a person who is signing at the direction of the principal (because the principal is unable to physically sign the supportive attorney form themself).
In addition one witness must:
- not be a relative of the principal or relative of the supportive attorney(s)
- not be a care worker or accommodation provider for the principal.
Each witness must certify that:
- the principal appeared to freely and voluntarily sign in their presence; and
- the principal appeared to have decision making capacity in relation to making of the supportive attorney appointment.
Witnessing requirements when supportive attorney(s) sign acceptance of appointment
Supportive attorneys must sign and date an ‘Acceptance of appointment’ in the appointment form. This happens after the principal has made the appointment. Someone who is 18 years of age or older needs to witness the supportive attorney signing the acceptance . Alternative supportive attorneys also need to sign the ‘Acceptance of appointment’ in front of a witness.
When the supportive attorney signs the acceptance they need to state that they:
- are eligible to be a supportive attorney
- understand the obligations (the duties) of a supportive attorney and the consequences (the result) if they fail to comply (if they don’t follow) the Powers of Attorney Act 2014 and
- undertake to follow the Act.
Alternative supportive attorneys also need to state that they:
- understand when they have authority to act and
- are prepared to act in place of the supportive attorney when authorised to do so.
There are steps to take after the supportive attorney appointment is made.
Form is not registered
The form is not registered anywhere. Supportive attorney forms should not be sent to the Office of the Public Advocate. The form needs to be kept by the person who made it (the principal).
The principal should keep the original form in a safe place, and give the supportive attorney a certified copy.
Supportive attorneys may need to deal with a number of people and organisations when supporting the principal. These organisations and people are entitled to see the supportive attorney's certified copy of the form of appointment, and check that the supportive attorney is acting within their powers.
Copies of the supportive attorney appointment form can be certified by people authorised to administer an oath (an oath is not a statutory declaration).
The Department of Justice & Regulation website has a list of people authorised to administer an oath.
A supportive attorney appointment ends if:
- the person who made the appointment revokes (cancels) the appointment
- VCAT revokes the power
- the person who made the appointment dies
- the supportive attorney dies (where there is no alternative supportive attorney)
When a supportive attorney appointment does not have effect
A supportive attorney appointment does not have effect during any period that the principal (the person who made the appointment) does not have decision making capacity for the matters.
How the person who made the appointment cancels the appointment
The principal can revoke (cancel) the appointment at any time so long as the principal has the decision making capacity to do so.
The principal needs to complete a ‘Revocation of appointment form’ (see right menu) to cancel the appointment and sign the form in the presence of one witness. If the principal is unable to physically sign the form, they can direct someone else to sign on their behalf in their presence and in the presence of the witness. The person who signs on their behalf must be 18 years of age or older, not the witness and not a supportive attorney. The witness needs to be authorised to witness statutory declarations.
The witness can’t be a supportive attorney; a relative of the principal or supportive attorney; a care worker or accommodation provider of the principal; or the person who is signing the form on behalf of the principal.
If the principal revokes (cancels) the appointment the law says that they need to take reasonable steps to inform their supportive attorney(s) that the appointment has been revoked. However, even if the principal doesn’t do this the appointment is still cancelled.
A supportive attorney’s role ends if…
An attorney’s role ends if:
- the supportive attorney no longer has decision making capacity for the matters to which the supportive attorney applies
- VCAT revokes the appointment of the attorney
- the supportive attorney is no longer eligible to be a supportive attorney (because the attorney becomes: insolvent under administration, a care worker, a health provider, or an accommodation provider for the principal. Or for financial matters, is convicted or found guilty of an offence involving dishonesty) or
- the supportive attorney resigns.
This material is provided for general information only. Please see the Disclaimer on OPA's website for more details.