The Law Handbook 2024

Chapter 8.6: Understanding powers of attorney 863 In the case of PJS (Guardianship) [2020] VCAT 705, VCAT considered the attorney’s obligation to keep the property of the principal separate from their own. This case illustrates the complexity of acting for family members. In the case of EMT (Guardianship) [2020] VCAT 1356, VCAT examined gifts and conflict transactions and whether, if the attorney had applied for VCAT’s advice, VCAT was likely to have authorised these gifts and transactions. VCAT’s role in relation to enduring powers of attorney VCAT has an extensive jurisdiction in relation to enduring powers of attorney (pt 8 POA Act). VCAT can determine: • the scope and exercise of the enduring power of attorney; • the effect of any failure to execute the enduring power of attorney properly; • the validity of the enduring power of attorney; • the validity of any transaction made under the enduring power of attorney; and • the lodging, examination and auditing of accounts (see s 116 POA Act). The POA Act (s 119) sets out the elements VCAT must consider when determining matters such as the validity of an enduring power of attorney and its proper execution. If the enduring power of attorney is found to be invalid, it is void from the beginning. There are limitations on who can apply to VCAT in relation to an enduring power of attorney. If a person can demonstrate a special interest in the affairs of the principal to VCAT’s satisfaction, they will have standing to apply (see s 122). The POA Act states who must be notified of an application (s 123) and who will be parties to the application (s 124). There is scope for a rehearing to a more senior member of VCAT. An application for a rehearing must be made within 28 days of the making of the order (see divs 4 and 5 of pt 8 of the POA Act). Both VCAT and the Supreme Court may order an attorney to compensate the principal for a loss caused by the attorney contravening a provision of the POA Act (ss 77–80). A claim ( YDM (Guardianship) [2016] VCAT 758) for compensation for losses alleged to be prior to the commencement of the POAAct (1 September 2015) was unsuccessful as the attorney could not have contravened an Act not in existence. In the DLM case, VCAT awarded compensation, but in the MYJ and EMT cases, it did not (see ‘Attorney’s obligations’, above). VCAT may open and read the principal’s will; although, it declined to do so in WQN (Guardianship) [2020] VCAT 814. In the matter of VIJ (Guardianship) [2020] VCAT 760, VCAT considered its powers to revoke a joint enduring power of attorney (financial) made under the Instruments Act 1958 (Vic). Revoking an enduring power of attorney Under the POA Act, there are various ways in which an enduring power of attorney can be revoked: • according to its terms (s 43); • by the principal (s 44); • by the death of the principal (s 51); • by the death of the attorney (s 52); • by the attorney losing capacity (s 53); • by the attorney’s becoming insolvent, becoming a care worker, health provider or accommodation provider for the principal, or being convicted of a dishonesty offence (s 54); • by the principal making a later power of attorney (s 55); • by the attorney’s resignation (ss 56–61). Section 62 of the POA Act sets out how a power may continue when one attorney ceases but there are others involved. For VCAT’s powers to suspend or revoke an enduring power of attorney where the attorney claims not to have been making decisions pursuant to it, see WRU (Guardianship) [2018] VCAT 1533. Supportive attorney What is a supportive attorney? The ‘supportive attorney’ appointment is designed to support a principal to make decisions for themselves. This is in line with Article 12 (equal recognition before the law) of the United Nations Convention on the Rights of Persons with Disabilities (2006), which says: