11. Powers of Attorney

11.1 What is a power of attorney?

A power of attorney is a legal document that allows a person to conduct another person’s financial, legal, or personal affairs. Powers of attorney operate when the principal is alive and wants or needs someone to make decisions on their behalf. When the principal dies the attorney ceases to have any powers.

11.2 Powers of Attorney Act 2014

The Powers of Attorney Act 2014 (the Act) commenced on 1 September 2015. All powers of attorney made in Victoria after this date must be made under this Act. Powers of attorney properly executed under previous legislation remain valid under the Act.

The Act provides for different types of powers of attorney. Although they each have much in common, it is important to be aware of their differences in purpose, documentation, and execution requirements. The powers of attorney are:

general non-enduring power of attorney, often called general power of attorney
enduring power of attorney, and
supportive power of attorney.

The person who makes the power of attorney is called ‘the principal’.

The Office of the Public Advocate (OPA) has prepared a handbook on powers of attorney called Take Control.

This valuable resource covers enduring powers of attorney, supportive attorney appointments, appointments of medical treatment decision makers and advance care directives in detail. It includes tear-out fact sheets containing information for witnesses, which you are encouraged to keep and utilise in your witnessing role.

11.3 General (non-enduring) power of attorney

A general power of attorney authorises one or more persons to act on behalf of the principal for defined purposes.⁵⁰ For example, selling the principal’s house for a specific figure, operating a bank account, managing the principal’s business affairs, or acting on behalf of the principal while they are overseas or in hospital.

A general power of attorney operates only while the principal has legal capacity, but not when they lose legal capacity.

Access the form for the general (non-enduring) power of attorney.

11.3.1 Witnessing requirements

There is no legal requirement for a general non-enduring power of attorney to be witnessed unless the principal is unable to sign the form.
If the principal cannot sign the form, they can direct another person to fill in and sign the form on their behalf.
The other person must sign on their behalf in front of the principal and two witnesses, who must also sign the form.⁵¹
In this situation, a special witness, such as a JP, is required to witness non-enduring power of attorney documents.

11.3.2 Certifying a copy of a general (non-enduring) power of attorney

To prove a copy of a power of attorney, the copy must be certified. Certification must be made by an authorised witness. JPs are authorised witnesses for this purpose.

To certify a copy of a general (non-enduring) power of attorney you must:

On each page, other than the last page of the copy, certify to the effect that the copy of that page is a true and complete copy of the corresponding page of the original.
On the last page, certify to the effect that the copy of the instrument is a true and complete copy of the original instrument.

You should also follow this procedure to certify a copy of a certified copy of a general (non-enduring) power of attorney (with appropriate modifications).

11.4 Enduring power of attorney

An enduring power of attorney is an instrument in which the principal authorises another person to conduct their financial or personal affairs on their behalf.⁵²

The principal can appoint one or more attorneys and can appoint different people to make different decisions about financial and personal issues. Both the principal and the attorney must be 18 or over and must have decision-making capacity.

An enduring power of attorney can start immediately or when the principal specifies that it is to start. They are often expressed to start when the principal no longer has decision-making capacity (perhaps caused by illness, dementia, or accident).

The power ends when the principal dies or cancels the power, if the Victorian Civil and Administrative Tribunal (VCAT) makes an order to that effect, or if the attorney dies or becomes unable to act.

An enduring power of attorney must be in the prescribed form.⁵³ Access a template form for the enduring power of attorney.

11.4.1 Witnessing requirements

Two independent adult witnesses must sign the document in the presence of the principal and of each other.
One of the independent witnesses must be an authorised witness (including JPs and registered medical practitioners).
Relatives of the principal, a person being appointed as an attorney, relatives of a person being appointed as an attorney, and care workers or accommodation providers for the person making the appointment cannot be witnesses.
If the principal cannot sign the form, they can direct another person (over the age of 18 years) to fill in and sign the form for them. The other person must sign on their behalf in front of the principal and the two independent adult witnesses. The person signing the form on behalf of the principal cannot be a witness to the principal’s signature and cannot be an attorney appointed under the enduring power of attorney.
Each of the witnesses signing the document must sign a certificate that includes a statement that the principal appeared to sign the instrument freely and voluntarily and appeared to have decision-making capacity. For further information, please refer to the Decision-making capacity section of this Handbook.
The person or persons appointed under the enduring power of attorney must sign an acceptance of the appointment in the presence of a witness. The witness does not need to be an authorised witness. They can do this at the same time as the principal completes their section or at another time. If there is more than one attorney, they do not need to be present at the same time.

11.4.2 Certifying a copy of an enduring power of attorney

To prove a copy of an enduring power of attorney, the copy must be certified. Certification must be made by an authorised witness. JPs are authorised witnesses for this purpose.

To certify a copy of an enduring power of attorney you must:

On each page, other than the last page of the copy, certify to the effect that the copy of that page is a true and complete copy of the corresponding page of the original.
On the last page, certify to the effect that the copy of the instrument is a true and complete copy of the original instrument.

You should also follow this procedure to certify a copy of a certified copy of an enduring power of attorney (with appropriate modifications).

11.4.3 Revocation of Enduring Power of Attorney

A principal may revoke an enduring power of attorney or the appointment of an attorney (e.g., to appoint another one) if the principal still has decision-making capacity.⁵⁴ The revocation of a power of attorney is a prescribed form.⁵⁵

11.4.4 Revocation of Enduring Power of Attorney – witnessing requirements

The witnessing requirements for the revocation of an enduring power of attorney or the appointment of an attorney are the same as for when the power of attorney was originally made, including the requirement that you and the other witness certify that the principal appeared to sign the instrument freely and voluntarily and appeared to have decision-making capacity.

11.5 Supportive power of attorney

A supportive power of attorney is an instrument by which an adult person (the principal) appoints one or more adults to support them in making decisions.⁵⁶ The decisions can be limited to assisting with financial or personal matters or both, and for a specific purpose. A supportive power of attorney is different to a general (non-enduring) or enduring power of attorney because a supportive attorney cannot make decisions on behalf of the principal. Once the principal loses decision-making capacity, the power automatically ends.

The types of help a supportive attorney can provide include communicating with organisations such as banks, supplier companies and government departments on behalf of the principal, gathering information to assist the principal make decisions and ensuring (within reason) that the principal’s decisions are carried out in accordance with their wishes.

Supportive attorneys cannot (even with the consent of the principal) assist the principal in real estate transactions (other than tenancy arrangements) or to enter into a financial transaction over $10,000.

A supportive attorney cannot formally support a decision about medical treatment.

The power can start immediately or when the principal specifies that it is to start. It ends when the principal dies or cancels it or loses capacity to make decisions or the supporting attorney resigns or dies.

The appointment of a supportive attorney is in a prescribed form.⁵⁷

11.5.1 Witnessing requirements

Two independent adult witnesses must sign the document in the presence of each other and of the principal.
Neither of the witnesses can be the person appointed as the supportive attorney or related to the supportive attorney or the principal or a care worker or accommodation provider for the principal.
One of the independent witnesses must be an authorised witness.
Each of the witnesses signing the document must sign a certificate that includes a statement that the principal appeared to sign the instrument freely and voluntarily and appeared to have decision-making capacity.
If the principal cannot sign the form, they can direct another person to fill in and sign the form for them. The other person must sign on behalf of the principal in front of the principal and two witnesses, who must also sign the form. The other person cannot be a witness to the principal’s signature.
The person appointed as a supportive witness must accept the appointment by signing the prescribed form in the presence of two independent witnesses.

11.5.2 Revocation of appointment of supportive attorney

A principal may revoke a supportive attorney appointment (e.g., to appoint another one) if the principal still has decision-making capacity.

The revocation of a support attorney appointment is a prescribed form.⁵⁸

11.5.3 Revocation of Supportive Power of Attorney – witnessing requirements

The witnessing requirements for the revocation of a supportive power of attorney or the appointment of a supportive attorney are the same as for when the supportive power of attorney was made, including the requirement that both witnesses certify that the principal appeared to sign the instrument freely and voluntarily and appeared to have decision-making capacity.