When you have an attorney

When you have decision-making capacity

• The role of your attorney is to assist you when you ask for their help. For example, you might ask your attorney to pay your bills.
• You can still make decisions for matters for which you have decision-making capacity, even if you have appointed an attorney. For example, how you spend your money.

Note: Capacity is decision-specific. You may have capacity for some decisions but not others.

When you do not have decision-making capacity for a matter

Your attorney must:

• give all practicable and appropriate effect to your wishes
• take all reasonably available steps to encourage you to participate in the decision-making
• act in a way that promotes your personal and social wellbeing.

By law your attorney must:

• act honestly, diligently and in good faith
• exercise reasonable skill and care.
• not use the position for profit (though an enduring power of attorney may authorise an attorney to be paid)
• not disclose confidential information (unless authorised by the enduring power of attorney or by law)
• keep accurate records and accounts of all dealings and transactions, for example, in a book or spreadsheet
• keep their property separate from yours (this does not apply to property owned jointly by your attorney and you
• avoid acting where there is, or may be, a conflict between their duty to you and their interests (or the interests of their relative, business associate or close friend), unless you or the Victorian Civil and Administrative Tribunal (VCAT) has authorised this.

What you can do

• Review your accounts and ask questions of your attorney to ensure that you understand how decisions are being made on your behalf.
• If you have any concerns, raise these with your attorney or seek advice from your lawyer, OPA or Seniors Rights Victoria.
• Review your enduring power of attorney every year and when your circumstances change. For example, if you divorce or remarry. Check that the choices that you made are still suitable for your current circumstances.
• You can revoke or cancel your enduring power of attorney at any time, so long as you have the capacity to do so.

Other safeguards

• If you no longer have the capacity to revoke your power of attorney and there are concerns about the decisions your attorney is making for you, another person, such as a friend, relative or doctor, can make an application to VCAT to revoke the power of attorney.
• If your attorney fails to properly undertake their duties or obligations, and this results in a loss to you, VCAT or the Supreme Court can order them to compensate you.
• If your attorney dishonestly uses the enduring power of attorney to obtain a financial advantage, they can be charged with a criminal offence.