Power of attorney & guardians

Tuesday 30 September, 2008

Developed with lawyers from Maurice Blackburn Cashman

On this page: Enduring medical power of attorney ι Enduring financial power of attorney ι Enduring power of guardianship ι What can a power of attorney do? ι Who can appoint or act as a power of attorney? ι How can I appoint a power of attorney? ι Guardianship of children

At some time you may want to appoint a ‘power of attorney'. This is a legal document that allows someone you trust to act and make decisions on your behalf, for example, if you are absent or unable to make your own decisions and manage your own affairs.

There are 4 kinds of powers of attorney:

  1. a general power of attorney,
  2. an enduring medical power of attorney,
  3. an enduring financial power of attorney and
  4. an enduring power of guardianship.

A general power of attorney gives someone the power to act on your behalf in certain circumstances that you can specify, for example, the power to act on your behalf and run your affairs when you are in hospital.

However, a general power of attorney applies only when you are well enough to be physically and mentally capable of making your own decisions. It ceases if you become too unwell to do this.

An enduring power of attorney does not cease if you become unwell and are no longer able to make informed decisions for yourself. This might be the case when some cancer medications (for example, pain relievers) affect your mental ability.

Before this happens, you can delegate your decision-making power to someone else by granting that person an enduring power of attorney. However, you can only grant an enduring power of attorney when you are still well enough to be able to
understand its effect and what it means.

Enduring medical power of attorney

When you give someone an enduring medical power of attorney, they are able to make decisions on your behalf about medical treatment you may need, and consent as your legal representative to that treatment.

That person (your attorney) cannot make all decisions regarding your treatment, however. They can only refuse medical treatment if the treatment would cause you unreasonable distress, or if they reasonably believe that you would have considered the treatment unnecessary. Therefore, it is important that your attorney knows your wishes for any future medical treatment.

Your attorney also cannot agree on your behalf to medical procedures that would be likely to lead to infertility, termination
of a pregnancy or removal of tissue for transplant. (For any of these procedures, your attorney would need to apply to the Guardianship List of the Victorian Civil and Administrative Tribunal for a decision.)

Your attorney cannot arrange euthanasia or refuse palliative care (treatment to ease symptoms when curative treatment is no longer possible).

Enduring financial power of attorney

An enduring financial power of attorney gives the person you appoint the power to make financial and legal decisions for you. The power can be specific, meaning that your attorney can only act in relation to matters specified by you, or all-embracing, meaning that your attorney can act in all financial and legal matters for you.

You can state in the enduring power of attorney either a date or certain situation when the enduring power of attorney will start to operate. For example, the power of attorney might begin if you became unable to manage your affairs because of ill-health or impairment.

Enduring power of guardianship

An enduring power of guardianship is a legal document that allows you to appoint another person you trust to make certain decisions for you if you become unable to make these decisions. These decisions would be about day-to-day matters such as your health care and where you live. You can:

  • give your guardian unrestricted powers to make these decisions
  • specify the types of matters you want your guardian to have the power to make decisions about
  • specify any wishes you want the guardian to take into account.

An enduring power of guardianship cannot be used to make financial or legal decisions on your behalf.

If you give your guardian to the power to make decisions about your health care, they can agree to medical treatment on your behalf. They cannot refuse medical treatment. However, if you have also appointed another person as an enduring medical power of attorney, they will take precedence over your guardian in any medical treatment decisions. In this case, your guardian will not be able to make these decisions on your behalf. 

Who can appoint or act as a power of attorney?

Anyone with sufficient mental capacity who is at least 18 years of age can appoint a power of attorney or enduring power of guardianship.

Anyone with sufficient capacity who is at least 18 years of age can act as an attorney or guardian. This means that at the time of appointing or acting as an attorney or guardian, you must be able to read the power of attorney or guardianship document or have it read to you.

You must also be able to fully understand the document and its effects and implications. You must not have any mental impairment that prevents you from understanding this, or be acting under pressure from anyone else.

You should ensure that your attorney or guardian is someone you trust to manage your affairs and look after your interests, and that they are happy to take on the role.

You may choose to appoint more than one attorney or guardian. You can specify that the attorneys can make decisions for you:

  • jointly (together)
  • severally (independently of each other)
  • jointly or severally
  • alternatively (the ‘alternative' attorney or guardian can only make decisions if the first one is unable to).

How can I appoint a power of attorney?

Forms for appointing a power of attorney or enduring power of guardianship are easy to complete. You can get them from your lawyer, law stationers or most newsagencies, or from the Office of the Public Advocate (see details below).

The power of attorney must be signed by you (the donor) and 2 witnesses. You must all sign the document in the presence of each other. One of the witnesses must not be related to you or the person you are appointing as your attorney.

One of the witnesses must be a person who is authorised to witness the signing of a statutory declaration, for example, a practising Australian lawyer, a member of the police force, a registered doctor or dentist, a pharmacist or a bank manager.

For more information on persons authorised to witness signings of statutory declarations, contact the Supreme Court
of Victoria Honorary Justices Office on 9603 9090.

The witnesses must sign documents stating that you signed the power of attorney freely and voluntarily in their presence, and that you understood its effect. The attorney (i.e. the person to whom you are granting the power of attorney) must also sign and date a statement of acceptance.

You can get the relevant form at www.publicadvocate.vic.gov.au or by contacting the Office of the Public Advocate's Advice Service on 1300 309 337. You can also contact your local community legal centre.

Guardianship of children

After being diagnosed with cancer, you may have concerns about your children and who will look after them if you die.

In your Will, you can say who you want to care and provide for your children. However, in the event that someone applies to the Family Court for guardianship of your children, the court will decide on the basis of what it considers best for the child.

The Family Court will consider your wishes, but will ultimately decide on the basis of what is in the ‘best interests of the child'.

This information is necessarily brief, and may not be relevant to every situation. Powers of attorney are sometimes complex. You may need specialist advice.

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