Power of Attorney lawyers in Geelong, Torquay & Melbourne

What is a Power of Attorney?

Enduring Powers of Attorney are documents which appoint loved ones or trusted friends to make financial, personal and/or medical decisions on your behalf whilst you are still alive.  There may be circumstances where you are unable to make decisions about matters that concern you, such as being overseas or being ill.

Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers can play a very important part in your ongoing care, should you unexpectedly be incapacitated or be unable to make decisions for yourself.

What matters can I appoint an Attorney for?

There are three matters for which you can authorise an Attorney to make decisions on your behalf. These are:

  • Financial decisions (Enduring Power of Attorney);
  • Personal (lifestyle) decisions (Enduring Power of Attorney); and
  • Medical and healthcare decisions (Appointment of Medical Treatment Decision Maker(s)).

Each document has its own specific purpose:

Enduring Power of Attorney

This document incorporates the appointment of an attorney to make both, or either, financial and person decisions on your behalf.

(a) Financial power

This power allows you to appoint an Attorney or Attorneys to make decisions in respect of financial matters. It is useful as a means of ensuring that someone, chosen by you, takes control of your financial and legal affairs if you are ever unable to do so yourself. You can decide when this authority begins.

Some examples of ‘financial matters’ include:

  • Making money available to you for personal expenditure;
  • Paying your expenses and debts;
  • Carrying on any trade or business;
  • Dealing with, preserving or improving your property;
  • Performing any contracts; and
  • Withdrawing money from or depositing money into an account with a financial institution.

(b) Personal power

You may appoint a personal Attorney/s, and alternative personal Attorneys, to make lifestyle decisions on your behalf if you do not have the capacity to make those decisions yourself. These decisions were previously known as ‘guardianship’ decisions, and are distinct from medical decisions.

Some examples of ‘personal matters’ include:

  • Where you live and with whom;
  • Who you can associate with;
  • Whether you work, and if so, the kind and place of work and employer;
  • Whether you undertake any education or training; and
  • Daily living issues such as diet and dress.

Appointment of Medical Treatment Decision Maker(s)

You may appoint a series of medical treatment decision makers to make medical treatment decisions on your behalf. This document comes into effect if you lose capacity to make these types of decisions on your own. Whilst you can appoint a number of alternate decisions makers, you cannot appoint two or more people to act jointly on your behalf. You should also consider the preparation of an Advance Care Directive with your treating medical practitioner or a specialist Advance Care Planning Unit.

A Medical Treatment Decision Maker can make decision on your behalf in respect to:

  • Treatment with physical or surgical therapy;
  • Treatment for mental illness;
  • Treatment with prescription pharmaceuticals; and
  • Dental treatment.

The person you appoint as your Medical Treatment Decision Maker should take into account your preferences and values, which can be inferred from your life or in a Values Directive (if prepared), and the likely effects and consequences of any medical treatment being considered.

What is ‘decision making capacity’?

Decision making capacity refers to a person’s ability to understand and retain information relevant to a decision, weigh options with respect to the decision, and their ability to communicate their decision.

Loss of decision making capacity can occur at any stage in life and for a number of reasons, including:

  • Dementia;
  • Brain injury caused by an accident; or
  • Illness

At Coulter Roache, we recommend preparing Enduring Powers of Attorney rather than General Powers of Attorney, as Enduring Powers of Attorney continue to be valid when you no longer have decision making capacity.   All Powers of Attorney cease to be valid after you pass away.

Who should I appoint as my Attorney or Medical Treatment Decision Maker?

You should appoint someone that you trust to manage your financial, personal and/or medical affairs in your best interests. You may appoint different people for different roles.

Many people choose their spouse or an adult child, but you may prefer to appoint another family member, a friend with expertise in a certain area, an accountant, lawyer, or a trustee company.  You should feel confident that the person or agency is competent to deal with the management decisions that may arise and capable of keeping accurate records of all dealings and transactions.

The Attorney or Medical Treatment Decision Maker you choose must be willing to take on the responsibility on your behalf.

The following people are not eligible to be appointed as an Attorney:

  • A person who is under the age of 18;
  • A person who is insolvent under administration;
  • A person who (if going to be appointed as a Financial Attorney) has been convicted or found guilty of an offence involving dishonesty if the offence is not disclosed to the Attorney and recorded in the Power of Attorney; and
  • A person who is a ‘care worker’, health provider or accommodation provider for the person making the Power of Attorney.

What is the difference between a Power of Attorney and a Will?

Powers of Attorney are only valid and provide authority to make decisions on your behalf whilst you are alive.  By comparison, your Will provides instructions for who is to administer your estate and receive your assets after your death.

After your death, Powers of Attorney become invalid and your affairs are managed in accordance with the terms of your Will or the laws of intestacy.  Powers of Attorney can also come to an end if you, or the Victorian Civil and Administrative Tribunal (VCAT), revoke the Powers.

When you meet with one of our lawyers, they will discuss your estate planning options with you and may advise that you prepare a Will, together with Powers of Attorney, as part of your tailored estate plan.  For more information on what happens if you die without a Will, click here.

What happens if I don’t have Powers of Attorney?

If you do not have Powers of Attorney, then you will be unable to choose who makes decisions for you should you unexpectedly lose decision-making capacity.  This can lead periods of time without access to funds, delays as to vital decision making, and conflict between loved ones about who should be making important decisions – which can result in costly litigation.

By preparing a Power of Attorney while you have legal capacity, you are able to take control and choose whom you wish to appoint to make decisions on your behalf and you can provide, if necessary, conditions and limitations for the exercise of such powers.

For Financial and Personal decisions

If it is determined by medical professionals that you have lost the capacity to make financial and personal decisions, a family member, friend or the Public Advocate may make an application to VCAT on your behalf to be appointed as your Administrator and/or Guardian.  An Administrator is appointed to handle your finances and legal affairs, whilst a Guardian is appointed to handle your personal matters.

A Member of VCAT will consider all material before it, and determine whether the applicant, another individual or a Trustee Company is most suitable to be appointed to these positions. This process is costly and the appointment may not reflect your wishes.

For Medical decisions

If you do not have an Appointment of Medical Treatment Decision Makers, then the Medical Treatment Planning and Decisions Act 2016 (VIC) provides a hierarchy of people who make medical treatment decisions on your behalf, should you be unable to make these decision for yourself, which is as follows:

  1. A Guardian appointed by VCAT to make medical decisions;
  2. Spouse or domestic partner;
  3. Primary carer;
  4. Adult child;
  5. Parent; then
  6. Adult sibling.

If you have more than one carer, child, parent or sibling then they would act in order of age, eldest to youngest. Again, this may not fall in line with your wishes, and accordingly it is best to take control and make those appointments yourself while you are capable of doing so.

What is the process for preparing Powers of Attorney?

The Wills, Estates & Succession Planning team at Coulter Roache have partnered with two-time Legal Innovation Award winners, Settify, to launch an easy to use online tool which allows you to provide instructions for your estate planning.

Using Settify, you can provide us with instructions for Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers.  After you complete the Settify induction, our team will be notified and will contact you to arrange an appointment with one of our experienced lawyers.

Armed with the information provided to us through Settify, our expert team of lawyers can review your circumstances and easily and efficiently draft your Powers of Attorney.  This innovation means that your time with your lawyer will be more efficient, detailing only the important issues in your estate planning and making the most of the expertise we provide.

Powers of Attorney may be prepared without the assistance of a lawyer, but when it comes time to sign these documents, they must be witnessed by someone who is authorised to witness the signing of an Affidavit, such as a lawyer or medical practitioner.

What are the costs?

Our professional fees for preparing an Appointment of Medical Treatment Decision Makers for you start at $200.00 plus GST, and Powers of Attorney (Financial and/or Personal) start at $250.00 plus GST.   These fees may vary depending on the complexity of your estate planning.  In your initial appointment, one of our lawyers will talk with you about your circumstances and assess if you would benefit from any additional documentation.

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