Updated: Oct 21, 2021
Photo Courtesy: Hillary Peralta collected from Unsplash
At present we are going through a very uncertain and anxious time. We should make sure that we take every possible measure to secure our future when we still can. An Enduring Power of Attorney is one of such measures that helps us to take control of our future and reduce uncertainty. Ideally, we should be able to take our own decisions. However, there are situations where due to illness or other conditions we become unable to take our decisions. An Enduring Power of Attorney is a tool that gives us the power to decide in advance that who shall we trust with our future financial or personal decisions if such a situation arises. It is an incredibly powerful tool. Hence it needs to be exercised very carefully. A clear understanding of the Enduring Power of Attorney will help you to make an informed decision to secure your future needs.
1. What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document that helps you to appoint someone you trust to make decisions about your personal or financial matters on your behalf. This person is called an attorney. This power is intended to endure or continue if and when you are unable to make your decisions.
You should only make an enduring power of attorney if there is someone you trust. The person you entrust with this power should be able to understand what is important to you. He/she should also be willing and able to act on your wishes as far as it is possible to do so. Otherwise, you should not make an enduring power of attorney.
2. Who can make an Enduring Power of Attorney?
If you are over the age of 18 years, you can make an Enduring Power of Attorney. However, you must have the decision-making capacity at the time the power is made and signed.
To make a valid enduring power of attorney, you must have the capacity to understand:
the powers you are giving to the attorney, including any limitations or conditions that you are going to put on these powers;
when the attorney can exercise these powers;
that while you have the capacity, you can revoke or vary the power of attorney at any time;
that the power will still operate if you lose the ability to make decisions;
that once you have lost the capacity, it is unlikely you will be able to oversee your attorney’s work and decision making.
A principal should have some understanding of the nature and extent of his or her financial affairs at the time of granting the Enduring Power of Attorney.
Many elderly people grant Enduring Powers of Attorney in anticipation of the future where either dementia or any other medical condition might affect their ability to manage their affairs.
3. Who shall you choose to be your Enduring Power of Attorney?
It is very important if you choose the right person or persons as your power of attorney. You will be entrusting them with the power to make important decisions for you at a vulnerable time of your life. Therefore, you need to choose someone you trust to stand in your place and make the decision you would make for yourself if you still had the capacity. They should be unlikely to pre-decease you and be willing, able and available at the time a decision may need to be made. You should review your choice every year once you make it to suit the changing circumstances of your life. You can appoint more than one attorney if you like.
You can choose what are the powers that you would like your attorney to exercise on your behalf. It could be the power to make decisions about your financial matters such as paying bills, personal matters such as where will you live or both. You can limit the power to cover only specific matters. You can also choose when the powers resume.
4. What happens if you don't make an Enduring Power of Attorney?
If you don’t appoint anyone as your power of attorney and are subsequently 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.
5. What are the legal requirements of an Enduring Power of Attorney?
An Enduring Power of Attorney must be in the approved written form. It should also comply with the requirements outlined in the Powers of Attorney Act 2014 (Vic). To be a valid Enduring Power of Attorney it should comply with the following requirements:
The Enduring Power of Attorney form must be signed and dated by two adult witnesses in the presence of each other and the principal.
One witness must be a medical practitioner or a person authorised to witness the signing of an affidavit, such as a lawyer.
Each witness must sign a certificate containing the information required by the legislation. This includes a statement that the principal has signed the Enduring Power of Attorney freely and voluntarily in the presence of the witness and appears to have decision-making capacity.
Each attorney must sign and date a statement of acceptance in the appropriate form for the Enduring Power of Attorney to be valid.
The attorney must keep accurate records of all dealings and transactions made under the Enduring Power of Attorney.
6. When will an Enduring Power of Attorney End?
An Enduring Power of Attorney will end if:
the principal revokes/cancels the power while he/she still have the capacity to do so;
the principal makes a later Enduring Power of Attorney unless he/she specifies that the earlier one is not cancelled;
the Victorian Civil and Administrative Tribunal (VCAT) revokes the power;
the principal dies.
7. How do you revoke an Enduring Power of Attorney?
If you revoke the Enduring Power of Attorney, you must take reasonable steps to inform your attorney/s about the revocation. For example, you can write to the last known address of the attorney.
However, even if you fail to give this notification to the attorney/s, the revocation is valid if all the other requirements are observed.
When you sign the revocation form, you must sign in front of two adult witnesses. The requirements for witnessing of revocation of an enduring power of attorney are that one of the witnesses must be
someone authorised to witness affidavits, or
a medical practitioner (medical doctor).
If you need more information about the enduring power of attorney or need to find a lawyer to help you prepare an enduring power of attorney, visit us on www.lawcircuit.com.au or call us on +61418631798 or email us at email@example.com
If you want a power of attorney to be made in Australia to send to India, please contact us. We will be happy to assist you to make Indian Power of Attorney as well as an Australian one.