Making an enduring power of attorney
Making an enduring power of attorney is one way of planning for the future.
Everyone has the right to make their own decisions. However, anyone can experience an injury or illness that means they are unable to make decisions, either temporarily or permanently.
By making an enduring power of attorney, you can choose who will make important financial and personal decisions for you, such as where you will live or what happens to your house, if you are unable to do so in the future.
An enduring power of attorney is a legal document that lets you appoint someone (an attorney) to make certain decisions for you. The power endures - or continues - if and when you are unable to make decisions.
You should only make an enduring power of attorney if there is someone you trust, who understands what is important to you, and is willing and able to act on your wishes as far as it is possible to do so. Otherwise you shouldn’t make an enduring power of attorney.
You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so.
You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.
Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.
What happens if you don't make an enduring power of attorney?
If you don’t appoint anyone, and are unable to make a decision when it needs to be made, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make the decision, such as the Public Advocate or a trustee company.
Choosing an attorney
It is very important that you trust the person or people you choose.
Whoever you appoint will have the authority to make decisions for you after you are no longer able to oversee their actions, or change or cancel their appointment.
You can appoint someone independent, such as a trustee company for financial matters. You should ask about their fees before doing so.
You can appoint more than one attorney. It's your choice.
You can choose for your attorney(s) to have the power to make decisions about financial matters (such as paying bills), personal matters (such as where you live) or both. You can limit the power to cover only specific matters, and you can choose when the powers start.
Completing the form
The Department of Justice and Community Safety has created an interactive long and short version of the enduring power of attorney form. After completing the form, you need to print it off and sign it in front of witnesses.
If you wish to appoint more than one attorney, you will need to use the long version of the form.
You can appoint one attorney and up to two alternative attorneys (back-ups) using the short version.
Alternatively, find the short version of the form in the free OPA booklet Take Control. (Order your free copy of the guide from Victoria Legal Aid.)
If you cannot physically sign the form, you can direct another person to sign for you in your presence and in the presence of the witnesses. Use the one of the interactive forms which have a place for this.
You need to sign the form in front of two adult witnesses.
One must be:
- someone authorised to witness affidavits
- a medical practitioner (medical doctor).
The Department of Justice & Community Safety website has a full list of people who can witness affidavits.
- a Justice of the Peace or a bail justice
- a lawyer with a practising certificate
- a police officer of or above the rank of sergeant or, for the time being, in charge of a police station.
Neither witness can be:
- one of your attorney(s)
- a relative of yours or a relative of any of your attorney(s)
- a care worker or accommodation provider for you
- a person who is signing at your direction (because you are unable to physically sign the form).
See what these words mean for the definitions of ‘relative’, ‘care worker’ and ‘accommodation provider’.
After you have signed the form in front of witnesses, each of your attorneys and alternative attorneys must sign a statement of acceptance in front of a witness.
Storage and certified copies
Your completed document is not registered in Victoria. You should keep the original in a safe place and give your attorneys certified copies, or make sure they know where to find a certified copy when they need it.
Read about certified copies.
When an enduring power of attorney ends
An enduring power of attorney ends if:
- you revoke (cancels) the power (while you have capacity to do so)
- you make a later enduring power of attorney (unless you specify that their earlier one is not cancelled)
- the Victorian Civil and Administrative Tribunal (VCAT) revokes the power
- you die.
Read about how to revoke an enduring power of attorney.
You may also be interested in: