Powers of Attorney

Often we refer to a "power of attorney" in general terms, but there are different types of powers of attorney, each with a different purpose.

The most common type that comes to mind when most people think about powers of attorney is actually called an Enduring Power of Attorney (sometimes referred to as an "EPA"). An EPA is commonly entered into as you approach an age where you may not be able to continue to look after your own legal or financial affairs, for example due to ill health, alzheimers, dementia, etc. The "enduring" part applies when you lose capacity to handle those matters, because the power of attorney "endures", or continues to operate, after you lose capacity. An Enduring Power of Attorney can relate to legal, financial and personal matters.

The other type of power of attorney is less common, and is usually referred to as a General Power of Attorney (or more specifically, a General Non-Enduring Power of Attorney). A General Power of Attorney is sometimes entered into for a specific time period or a specific reason. For example, if you are going overseas for a length of time, you may wish to authorise someone at home to sign documents on your behalf, either for the entire duration of the trip, or only in relation to a specific matter, for example if you are selling your house while you are away. A General Power of Attorney would cease to operate if you lost capacity, for example if you were injured while overseas and ended up in a coma. A General Non-Enduring Power of Attorney can only relate to legal and financial matters (not personal).

Until about 2016 there was also an Enduring Power of Attorney (Medical Treatment), but this is now called an Appointment of Medical Treatment Decision Maker ("AMTDM"). While the name has changed, the intent remains the same, as this document allows a person to choose who will make decisions regarding their medical treatment if they cannot make the decisions for themselves. Although renamed, the AMTDM is also "enduring" in that it continues to operate after loss of capacity.

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?

It is important that you 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.

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.

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.

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.

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.

You have the right to make your own medical treatment decisions.

However, if you experience an injury or illness that means you are unable to make decisions, either temporarily or permanently, If this happens to you, Victoria’s Medical Treatment Planning and Decisions Act 2016 specifies who has legal authority to make medical treatment decisions for you. This person is called your medical treatment decision maker.

You can choose your medical treatment decision maker by appointing someone to this role, providing you have decision-making capacity to do so.

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.

Note:

It is the responsibility of the health practitioner to determine capacity for a specific decision.

Choosing a medical treatment decision maker

If you decide to appoint a person, or people, who will have legal authority to make medical decisions for you, think about what qualities are important to you. For example, you may want someone who:

• is willing to listen to, and act on, your wishes rather than their own;

• is trustworthy;

• has the skill and time required;

• is willing to take on the role with all its responsibilities;

• can communicate effectively and is willing to consult with others;

• understands and respects your culture and connections with your community.

Whoever you choose should be someone you trust to respect your values and preferences.

You can appoint more than one person, but only one person acts at any one time.

Limitations or conditions for appointed medical treatment decision makers

If you choose to appoint a medical treatment decision maker, you can set limitations and conditions in the document of appointment.

An appointed medical treatment decision maker has the powers set out in the Act, subject to any limitations or conditions you specify in the document of appointment.

The Act sets out how a medical treatment decision maker must make a medical treatment decision.

When to include limitation or conditions

Limitations or conditions could be relevant if:

• You wish to specify that the appointed medical treatment decision maker consult with particular people (noting that a medical treatment decision maker is required by the Act to consult with any person they reasonably believe you would want them to consult with in the circumstances).

• You wish to specify that the person is only empowered to make certain types of decisions. However, if the appointed medical treatment decision maker is not empowered to make the decision (and a medical treatment decision needs to be made) whoever else would be your medical treatment decision maker would be empowered by the legislation to make the decision.

• You wish to set an expiry date for an appointed medical treatment decision maker to be in the role. However, if the appointed medical treatment decision maker’s appointment has expired (and a medical treatment decision needs to be made) whoever else would be your medical treatment decision maker would be empowered by the legislation to make the decision.

• You wish to specify that the medical treatment decision maker is to seek advice from the Victorian Civil and Administrative Tribunal (VCAT) in relation to specific medical treatment decisions.

When your medical treatment decision maker is not appointed by you

It is important to understand that while you can set conditions and limitations when you appoint your medical treatment decision maker, you cannot set conditions and limitations in relation to any other type of medical treatment decision maker.

It is possible to express your preferences and values in relation to medical treatment in an advance care directive. If you do this, your medical treatment decision maker must consider your values directive.

Your advance care directive would need to be considered by any medical treatment decision maker, regardless of whether they are:

• your appointed medical treatment decision maker;

• a guardian appointed by VCAT to make medical treatment decisions for you or

• your relative or primary carer as described in the Act.

Ending or cancelling a medical treatment decision maker appointment

The appointment of your medical treatment decision maker ends if:

• you revoke (cancel) the appointment (while you have capacity to do so);

• the Victorian Civil and Administrative Tribunal (VCAT) revokes the power;

• you die.

You should inform your medical treatment decision maker that their appointment has been revoked. You should also inform people who know of the appointment, such as your doctor or hospital.

Resignation

If your medical treatment decision maker resigns, they must take all reasonable steps to inform the following people they have resigned as medical treatment decision maker:

• the person who appointed them;

• any other appointed medical treatment decision maker who was appointed at the same time.

The resignation must be:

• in writing and expressly state an intention to resign;

• signed and dated by the appointee;

• witnessed by one adult witness.