The Law Handbook 2024

864 Section 8: Disability, mental illness and the law parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. The principal may give their supportive attorney three sorts of powers: • to support the principal to obtain information (s 87 POA Act); • to support the principal to communicate (s 88 POA Act); • to support the principal to give effect to their decisions (s 89 POA Act). For example, a principal would like to go on holidays overseas, but finds it difficult to obtain information about getting a passport, arranging visas, and finding out where to stay. Arranging a passport requires obtaining documents (e.g. proof of identity), disclosing information, and paying fees. The principal may need support to do these things and may appoint a supportive attorney to help. A core legal concept is that the decisions are those of the principal, and not of the supportive attorney (s 86 POA Act). The person appointing a supportive attorney must have the capacity to decide to do so and the capacity to make decisions for which the support is sought (ss 85–86 POA Act). (See section 4 of the POA Act for the meaning of decision-making capacity.) A supportive attorney can be appointed for financial or personal matters. Since the commence­ ment of the MTPD Act, a supportive attorney cannot be appointed in relation to medical treatment and medical research procedures. The MTPD Act enables the appointment of a support person to perform the role in relation to these matters. There are limits on who can be appointed. The supportive attorney must be over 18 years old, must not be insolvent, and must not have been found guilty of a dishonesty offence (see s 91 POA Act). There can be more than one supportive attorney appointed and, if so, they can act separately (s 92 POA Act). There is scope for alternative supportive attorneys (s 93 POA Act). The duties of the supportive attorney are set out in section 90 of the POA Act. In essence, these duties emphasise the importance of the supportive attorney’s integrity. The authority does not extend to supporting the principal to make decisions about significant financial transactions (which are defined) (s 89 POA Act). The form for appointing a supportive attorney can be downloaded from the OPA’s website (www. publicadvocate.vic.gov.au) . The appointment may be revoked by the principal at any time. It will also be revoked if the principal ceases to have the capacity to make decisions. The power is revoked by the principal’s death, the attorney’s death, the attorney becoming insolvent or becoming a care worker or provider for the principal, or the attorney is convicted of a dishonesty offence. The supportive attorney can resign (see Div 5 pt 7 POA Act). VCAT has a role similar to that set out above for enduring powers of attorney to oversee the validity and operation of the power of supportive attorney. Enduring power of attorney (medical) The MTPD Act repealed the Medical Treatment Act 1988 (Vic) under which a person may have appointed an enduring power of attorney for medical treatment. The MTPD Act permits the appointment of a medical treatment decision-maker ( MTDM ). Where a person has previously appointed an enduring power of attorney for medical treatment, that person continues to have the power to make medical treatment decisions on behalf of the person, and is to be taken to be their appointed MTDM (see s 103 MTPD Act). For more information about appointing a MTDM, see Chapter 8.5: Guardianship and medical treatment. More information about powers of attorney For more information about the power of attorney, see the following booklets: • OPA 2022, Take control • OPA 2020, Questions for your lawyer • OPA 2020, Future planning for decision-making and the law in Victoria: A resource for lawyers who practise in future planning • OPA 2020, Supported decision-making in Victoria • OPA 2019, You decide who decides: Making an enduring power for financial decisions