Making an enduring power of attorney


Contents

What is an enduring power of attorney?

What happens if you don't make an enduring power of attorney?

How to choose an attorney

What happens when you appoint more than one attorney?

Completing the forms

Risks and safeguards

Witnessing requirements

Ending and cancelling

What is an enduring power of attorney?

An enduring power of attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney. The power endures - or continues - if and when you are unable to make decisions.

You can limit the power to cover only specific matters, and you can choose when the powers start.

Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.

You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so. 

Note: You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.

What happens if you don't make an enduring power of attorney?

Important: 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.

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.

Return to top

What is decision-making capacity?

You have decision-making capacity if you are able to:

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make that decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision specific. A person may have capacity for some decisions but not others.

Return to top

How to choose an attorney

If you choose to appoint an attorney, it’s vital you choose the right person or persons.

This is because you are giving them the power to make important decisions for you at a vulnerable time of your life.

You need to choose someone you trust to stand in your place and make the decision you would make for yourself if you had capacity. They should be unlikely to die before you, and be willing, able and available at the time a decision may need to be made.

You can appoint more than one attorney.

What happens when you appoint more than one attorney?

If you appoint more than one attorney, you should specify how you want them to make decisions.

You may appoint your alternative attorneys to act:

  • jointly — they must make decisions together (and all sign any document)
  • jointly and severally — they can make decisions together or independently (for example, either all sign any document, or one attorney alone can sign any document)
  • severally — they can make decisions independently (and one attorney alone can sign any document).

You should ensure that whatever you decide will be a workable arrangement. 

Return to top

Completing the forms

It is important to appreciate that powers of attorney are complex legal documents that have become more complicated over the years.

While it is still possible to complete these forms yourself, OPA recommends you get legal advice to ensure your power of attorney and other documents accurately reflect your wishes. You can engage a private solicitor or State Trustees Limited, which will charge a fee.

You can download a fact sheet pdf Questions for your lawyer (121 KB) , which will help you prepare for your first appointment.

The Department of Justice and Community Safety has created long and short versions of the enduring power of attorney form.

If you choose to use one of these forms, you will need to save it to your computer before you start to fill it out. After completing the form, you need to print it off and sign it in front of witnesses.

Which form do I use?

The pdf short form (605 KB)  allows you to appoint an attorney and up to two alternative attorneys. You also need to specify what decisions your attorney can make.

Use the pdf long form (740 KB)  if you wish to appoint more attorneys, or more alternative attorneys. You will also need to use the long form if you need someone to sign for you due to physical disability.

Return to top

Risks and safeguards

The majority of enduring powers of attorney work well.

Unfortunately, it is not possible to guarantee that your enduring power of attorney will only be used in the way you want.

There are steps you can take to reduce the risk of things going wrong.

One way is to involve other people in the use of the power (for example, by appointing more than one attorney or by requiring your attorney to provide information to a trusted person).

It's also important to regularly review your enduring power of attorney every year.

These and other tips are described in the booklets   pdf You Decide Who Decides  (2.48 MB) and   pdf Your Voice - Trust Your Choice (689 KB)

These booklets also have sample wording you can use if you want to, for example:

  • limit your attorney's powers
  • require your attorney to provide information to a trusted person
  • authorise payment to your attorney.

You can also download a pdf Before you sign checklist (57 KB) .

Return to top

Witnessing requirements

Two adult witnesses are required for an enduring power of attorney appointment.

One must be authorised to witness affidavits or a registered medical practitioner.

The following people cannot be a witness:

• a relative of the person making the appointment

• a person who is being appointed (an attorney or alternative attorney), or their relative

• a care worker or accommodation provider for the person making the appointment.

Return to top

Remote witnessing of power of attorney documents

The Powers of Attorney Act 2014 allows for enduring powers of attorney to be electronically signed and witnessed with all persons in separate spaces connected by audio-visual link. 

OPA recommends, however, that face-to-face witnessing is used wherever possible – remembering this can still be done whilst maintaining social distancing,

Remote witnessing of enduring powers of attorney should be a last resort, if there are no other options.

Remote witnessing is complex and there are practical difficulties involved in adhering to all of the legal requirements. If a document is not witnessed in a valid manner, it may not be legally binding. It is therefore recommended that people use a lawyer to ensure all requirements are met. If this is not possible, visit the Department of Justice and Community Safety website for important information on electronic signing and remote witnessing. Information about remote witnessing for powers of attorney documents is also available on this website.

Please note - advance care directives and appointments of medical treatment decision makers cannot be witnessed remotely.

Return to top

Ending and cancelling an enduring power of attorney

An enduring power of attorney ends if:

  • you revoke (cancel) 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.

How to revoke an enduring power of attorney

If you revoke the enduring power of attorney, you must take reasonable steps to inform your attorney(s). For example, you can write to the last known address of the attorney.

Even if you do not give this notification, the revocation is valid if all other requirements are met.

Witnessing requirements

When you sign the revocation form, you must sign in front of two adult witnesses.

One must be someone authorised to witness affidavits or a medical practitioner (medical doctor).

The Department of Justice & Community Safety website has a full list of people who can witness affidavits. 

They include:

  • 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).

Return to top

Downloadable Resources