The Law Handbook 2024

860 NOTE The law in this chapter is current as at 1 September 2023. Introduction When an adult becomes unable to make reasonable judgments because of a disability, the Guardianship List of the Victorian Civil and Administrative Tribunal ( VCAT ) can select and appoint guardians and administrators if necessary. (See ‘Capacity and consent’ in Chapter 8.1: Understanding disability and the law, and Chapter 8.5: Guardianship and medical treatment.) Generally, a VCAT appointment is not required if an enduring power of attorney already exists. This means that the cost and inconvenience of a VCAT application, a hearing, and ongoing periodic reviews can be avoided. So, it is a good idea to consider providing for some or all of the enduring powers described in this chapter, in case of any sudden or gradual onset of a disabling condition. NOTE The person who appoints a power of attorney is called the ‘principal’. Note that the general (non-enduring) power of attorney has not been included here as it’s not relevant to the area of disability and guardianship, as it lapses if the principal loses decision-making capacity. What is an enduring power of attorney? An enduring power of attorney is a written document that a principal uses to authorise an attorney to make decisions about their financial and personal matters. The purpose of the appointment is to enable the attorney to make decisions for the principal if the principal loses the capacity to make those decisions. The form to appoint an enduring power of attorney is available on the website of the Office of the Public Advocate ( OPA ) (www.publicadvocate. vic.gov.au) . There is no process to register an enduring power of attorney. Key legislation related to powers of attorney Powers of Attorney Act 2014 The Powers of Attorney Act 2014 (Vic) (‘ POA Act ’) created a new enduring power of attorney that replaced the financial enduring power of attorney (made under the Instruments Act 1958 (Vic)) and the enduring power of guardianship (made under the Guardianship and Administration Act 1986 (Vic)). Also, the general (non-enduring) power of attorney is no longer in the Instruments Act 1958 (Vic) but is now in the POA Act. The POA Act ensures that enduring powers of attorney (financial) and enduring powers of guardianship made under previous laws remain valid. The POA Act created a new, non-enduring power of attorney called a ‘supportive attorney’. Medical Treatment Planning and Decisions Act 2016 The Medical Treatment Planning and Decisions Act 2016 (Vic) (‘ MTPD Act ’), which commenced on 12 March 2018, affects the powers of personal attorneys. To appoint a person to make decisions about medical treatment and medical research procedures when a person has lost their decision- making capacity, it is necessary to appoint a ‘medical treatment decision-maker’. The MTPD Act allows the appointment of a support person (see ‘Support people’ in Chapter 8.5: Guardianship and medical treatment). 8.6 Understanding powers of attorney Contributor: Philip Grano, Principal Legal Officer (Retired), Office of the Public Advocate