Information for lawyers
Explanation and Disclaimer
One of the functions of the Office of the Public Advocate is to arrange, coordinate and promote informed public awareness and understanding by the dissemination of information with respect to the provisions of the Guardianship and Administration Act 1986 and other legislation dealing with or affecting persons with a disability.
The following documents have been provided for lawyers who advise clients in relation to enduring powers of attorney and in proceedings at the Guardianship List of VCAT. We hope to enhance public awareness and understanding about these legal issues by resourcing lawyers with more detailed information than is appropriate to include in our documentation designed for the general community.
There is considerable complexity in the interplay of the legislation, particularly saving and transitional provisions. We have endeavoured to be clear and to ensure accuracy, however, it is possible that there are errors or omissions. We would be grateful if you could advise us if you do notice any inaccuracies or if the documents are unclear. Please do not rely solely on these documents without referencing the relevant legislation. The documents are not intended as legal advice.
The Office of the Public Advocate expressly disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of this publication.
A timeline of when Acts in relation to enduring powers have been in operation, and the relevant appointment forms.
Medical Treatment Planning and Decisions Act 2016
This Act came into effect on 12 March 2018. For information about the changes see the Department of Health and Human Services health.vic website.
For the new advance care directive, appointment of medical treatment decision maker and appointment of support person forms (as well as revocation and resignation forms) see the advance care planning forms page of the health.vic website.
This Act came into effect on 1/5/2017 and amended the Powers of Attorney Act 2014 in three key ways:
- It clarified the confusion created for many people in trying to distinguish between the choice of a principal to authorize an attorney to “do anything on behalf of the person that a person can lawfully do by an attorney’, or to make decisions in relation to personal or financial matters or both.
- It made explicit that a principal can appoint more than one alternative attorney for an attorney.
- It simplified revocation processes of old enduring powers of attorney and old enduring powers of guardianship.
The formalities for revoking enduring powers of attorney and other appointments depends upon (a) under which Act the power or appointment was made and (b) when the principal wishes to revoke the power or appointment.
This document sets out the legal tests for various decisions and actions in which decision making capacity is required, particularly in relation to enduring powers of attorney.
The information below is designed to assist with determining:
- the validity of a particular appointment by referencing the law in effect at the time the appointment was made; and
- the law which currently applies to enduring appointments made prior to the commencement of the Powers of Attorney Act 2014 (POAA).
This is a summary of the Victorian Civil and Administrative Tribunal’s (VCAT) jurisdiction in relation to the following enabling legislation:
- Guardianship and Administration Act 1986
- Powers of Attorney Act 2014
- Medical Treatment Act 1988
- Instruments Act 1958
- Disability Act 2006
- Medical Treatment Planning and Decisions Act 2016
- Victorian Civil and Administrative Tribunal Act 1998.