Special power of attorney Australia

What is an enduring power of attorney?

What happens if you don't make an enduring power of attorney?

How to choose an attorney

What happens when you appoint more than one attorney?

Completing the forms

Which form to I use?

Risks and safeguards

Witnessing requirements

Ending and cancelling

Forms and other resources

What is an enduring power of attorney?

An enduring power of attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney. The power endures - or continues - if and when you are unable to make decisions.

You can limit the power to cover only specific matters, and you can choose when the powers start.

Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.

You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so. 

Note: You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.

What happens if you don't make an enduring power of attorney?

Important: You should only make an enduring power of attorney if there is someone you trust, who understands what is important to you, and is willing and able to act on your wishes as far as it is possible to do so. Otherwise, you shouldn’t make an enduring power of attorney.

If you don’t appoint anyone, and are unable to make a decision when it needs to be made, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone to make the decision, such as the Public Advocate or a trustee company.

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What is decision-making capacity?

You have decision-making capacity if you are able to:

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make that decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision specific. A person may have capacity for some decisions but not others.

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How to choose an attorney

If you choose to appoint an attorney, it’s vital you choose the right person or persons.

This is because you are giving them the power to make important decisions for you at a vulnerable time of your life.

You need to choose someone you trust to stand in your place and make the decision you would make for yourself if you had capacity. They should be unlikely to die before you, and be willing, able and available at the time a decision may need to be made.

You can appoint more than one attorney.

What happens when you appoint more than one attorney?

If you appoint two or more attorneys or two or more alternate attorneys, you should specify how you want them to make decisions.

You may appoint them to act:

• jointly — they must make decisions together (and all sign any document)
• jointly and severally — they can make decisions together or independently (for example, either all sign any document, or one attorney alone can sign any document)
• severally — they can make decisions independently (and one attorney alone can sign any document)
• majority — a majority need to agree to make a decision (and the majority who agree sign any document).

You should ensure that whatever you decide will be a workable arrangement. 

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Completing the forms

It is important to appreciate that powers of attorney are complex legal documents that have become more complicated over the years.

Ensure the form has been explained in a language you understand. OPA recommends using an independent and qualified interpreter.

While it is still possible to complete these forms yourself, OPA recommends you get legal advice to ensure your power of attorney and other documents accurately reflect your wishes. You can engage a private solicitor or State Trustees Limited, which will charge a fee.

You can download a fact sheet Questions for your lawyer (121 KB) , which will help you prepare for your first appointment.

The Department of Justice and Community Safety has created long and short versions of the enduring power of attorney form.

If you choose to use one of these forms, you will need to save it to your computer before you start to fill it out. After completing the form, you need to print it off and sign it in front of witnesses.

Which form do I use?

The short form (605 KB)  allows you to appoint an attorney and up to two alternative attorneys. You also need to specify what decisions your attorney can make.

Use the long form (740 KB)  if you wish to appoint more attorneys, or more alternative attorneys. You will also need to use the long form if you need someone to sign for you due to physical disability.

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Risks and safeguards

The majority of enduring powers of attorney work well.

Unfortunately, it is not possible to guarantee that your enduring power of attorney will only be used in the way you want.

There are steps you can take to reduce the risk of things going wrong.

One way is to involve other people in the use of the power (for example, by appointing more than one attorney or by requiring your attorney to provide information to a trusted person).

It's also important to regularly review your enduring power of attorney every year.

These and other tips are described in the booklets   You Decide Who Decides  (2.48 MB) and   Your Voice - Trust Your Choice (689 KB) . 

These booklets also have sample wording you can use if you want to, for example:

• limit your attorney's powers
• require your attorney to provide information to a trusted person
• authorise payment to your attorney.

You can also download a Before you sign checklist (62 KB) .

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Witnessing requirements

Two adult witnesses are required for an enduring power of attorney appointment.

One must be authorised to witness affidavits or a registered medical practitioner.

The following people cannot be a witness:

• a relative of the person making the appointment

• a person who is being appointed (an attorney or alternative attorney), or their relative

• a care worker or accommodation provider for the person making the appointment.

Watch of video on witnessing requirements (also available at the bottom of this page)

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Remote witnessing of power of attorney documents

The Powers of Attorney Act 2014 allows for enduring powers of attorney to be electronically signed and witnessed with all persons in separate spaces connected by audiovisual link. 

OPA recommends, however, that face-to-face witnessing is used wherever possible – remembering this can still be done whilst maintaining social distancing,

Remote witnessing of enduring powers of attorney should be a last resort, if there are no other options.

Remote witnessing is complex and there are practical difficulties involved in adhering to all of the legal requirements. If a document is not witnessed in a valid manner, it may not be legally binding. It is therefore recommended that people use a lawyer to ensure all requirements are met. If this is not possible, visit the Department of Justice and Community Safety website for important information on electronic signing and remote witnessing. Information about remote witnessing for powers of attorney documents is also available on this website.

Please note - advance care directives and appointments of medical treatment decision makers cannot be witnessed remotely.

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Ending and cancelling an enduring power of attorney

An enduring power of attorney ends if:

• you revoke (cancel) the power (while you have capacity to do so)
• you make a later enduring power of attorney (unless you specify that their earlier one is not cancelled)
• the Victorian Civil and Administrative Tribunal (VCAT) revokes the power
• you die.

How to revoke an enduring power of attorney

If you revoke the enduring power of attorney, you must take reasonable steps to inform your attorney(s). For example, you can write to the last known address of the attorney.

Even if you do not give this notification, the revocation is valid if all other requirements are met.

Witnessing requirements

When you sign the revocation form, you must sign in front of two adult witnesses.

One must be someone authorised to witness affidavits or a medical practitioner (medical doctor).

The Department of Justice & Community Safety website has a full list of people who can witness affidavits. 

They include:

• a Justice of the Peace or a bail justice
• a lawyer with a practising certificate
•  a police officer of or above the rank of sergeant or, for the time being, in charge of a police station.

Neither witness can be:

• one of your attorney(s)
• a relative of yours or a relative of any of your attorney(s)
• a care worker or accommodation provider for you
• a person who is signing at your direction (because you are unable to physically sign the form).

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• Enduring power of attorney forms can be complex to complete as there are many options to consider.

  Below is a checklist with some things to think about before you sign. It is not a complete list, but is to help you think carefully before you sign.

  If there is a question you do not feel able to answer, you may wish to get more information.

  The checklist below is to help you make an enduring power of attorney that: 

  • reflects your wishes
  • includes conditions to reduce the risk of things going wrong.

  Where to start

   ☐ Have you had a discussion with those close to you?

  ☐ Have you decided that making an enduring power of attorney is right for you?

  Choosing someone you trust to make decisions for you

  ☐ Have you considered what qualities are important to you when choosing an attorney?

  ☐ Do you trust the person to make decisions as you would like them to?

  ☐ Have you discussed the appointment and your wishes with that person? ☐ Is that person willing to take on the role and listen to what you want?

  Deciding what powers to give

  ☐ Have you decided what powers to give to your attorney?

  Deciding when the powers should start

  ☐ Have you decided when the powers will start?

  Helpful tips

  Have you considered:

  ☐ appointing more than one attorney to act jointly (together)?

  ☐ appointing more than one attorney to act jointly and severally (together or alone) or as a majority?

  ☐ including an instruction that your attorney provide reports to another trusted person?

  ☐ authorising your attorney to disclose confidential information?

  ☐ including an instruction requiring your attorney to obtain an independent assessment of your decision-making capacity?

  ☐ including an instruction that another person is notified before the power is used for the first time?

  ☐ including other conditions and instructions to your attorney?

  ☐ whether you want to authorise a conflict transaction? For example, allowing a person to live in your house free of charge.

  ☐ whether you want to place any limits on the gifts that your attorney can make?

• Two adult witnesses are required for an enduring power of attorney appointment.

  One must be authorised to witness affidavits or a registered medical practitioner.

  The following people cannot be a witness:

  • a relative of the person making the appointment

  • a person who is being appointed (an attorney or alternative attorney), or their relative

  • a care worker or accommodation provider for the person making the appointment.

  Step 2: Ask questions

  When you act as witness, you certify that the person appeared to have decision-making capacity (see above) to make the document.

  Things to check

  You must be satisfied the person must is acting freely and voluntarily. It is good practice to talk to the person without anyone they are appointing present.

  You should ask questions to make sure the person understands the effect of their decision to make an enduring power of attorney.

  This includes:

  • when the enduring power of attorney starts
  • that, once the power starts, their attorney has the same legal authority as them to make decisions about financial matters, personal matters, or both (depending on what powers they have given their attorney)
  • that they may place conditions on the power they give to their attorney and may give instructions
  • that they may revoke (cancel) the power of attorney at any time while they have decision-making capacity to do so
  • that the enduring power of attorney continues, even if they subsequently lose decision-making capacity
  • that, at any time they do not have decision-making capacity, they will be unable to effectively oversee the use of the power.

  Step 3: The person signs in front of you

  If you are satisfied of the things described above and set out in the table below, the person signs in front of you and the other witness.

  You both then sign and date the witness certification.

  Interpreters

  If you need to use an interpreter to communicate with the person, OPA recommends that you and the other witness complete and sign the following statement on the form:

  We communicated with the person through an interpreter, [name and NAATI number (if accredited)] who, to the best of our knowledge and belief: 

  • • • truly interpreted to the person in [insert language]
      • is not an attorney of the principal.

  [Witnesses signature]

  What you are certifying

  Decision-making capacity	That the person appears to have decision-making capacity at the time of signing in relation to the making of the enduring power of attorney
  Understands nature and effect	That the person appears to understand the effect of their decision to make the enduring power of attorney
  Freely and voluntarily signs	That the person appears to freely and voluntarily sign the document, and in the presence of the witnesses
  Eligibility to be a witness	That you are eligible to be a witness

• Your completed document is not registered in Victoria. You should keep the original in a safe place and give your attorneys certified copies, or make sure they know where to find a certified copy when they need it.

  Certified copies

  People who are authorised to witness affidavits can also certify that a photocopy of a completed enduring power of attorney is a true and complete copy of the original.

  The Powers of Attorney Act 2014 states that each page, other than the last page, of the copy must be certified by the authorised person to the effect that the copy of that page is a true and complete copy of the corresponding page of the original form.

  The last page of the copy must be certified to the effect that the copy is a true and complete copy of the original form.

• Victoria recognises enduring powers of attorney made in other states and territories if the powers given are powers that could be given in Victoria.

  Many Australian states and territories accept each other’s powers of attorney, but not all.

  Other countries may give some recognition to powers of attorney made in Australia if they are able to do so under their laws, but it is unlikely that they will accept it as legally binding.