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Changes to Powers of Attorney commencing on or before 1 September 2015

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By Andrea Olsson, Senior Associate, MST Lawyers

The Powers of Attorney Act 2014 will commence operation no later than 1 September 2015.  The Act deals with both non Enduring Powers of Attorney (previously General Powers of Attorney) and Enduring Powers of Attorney. 

For Non-Enduring Powers of Attorney

This power of attorney can state a date from which these powers are exercisable.  These documents are used for specific limited events or matters. They cannot be used if the principal loses capacity.

Enduring Powers of Attorney

The new Act combines Enduring Powers of Attorney for financial matters, legal matters and the Enduring Power of Guardianship into the one document. 

The Act places a greater emphasis on the principal (previously the donor) who is making the power of attorney to have as much input into the decision making process, even if they lose capacity. 

Where the principal lacks some decision making capacity the attorney must act in a least restrictive way to the principal’s decision making power.  This includes giving appropriate effect to the principal’s wishes and encouraging the principal to participate in decision making.

Importantly, the Act seeks to promote the inherent dignity of the principal.  The attorney must have regard to the principal’s supportive relationships, religious values and cultural linguistic environment as well as respecting confidentiality of information relating to the principal.

The Act states activities which the attorney cannot perform on behalf of the principal such as making or revoking a Will or Enduring Power of Attorney, voting, consent to dissolution of marriage or domestic relationship or making parenting decisions about the principal’s child.

It is presumed that the principal has capacity to make their own decisions unless there is evidence stated to the contrary.  This evidence may show that the principal has the capacity to make decisions in relation to certain issues and not others.  There is emphasis on the attorney providing appropriate support to assist the principal to make decisions and to communicate these decisions.

In addition to the current duties for an attorney, the Act reinforces the need to keep accurate records and accounts.

Where more than one attorney is appointed, the principal can specify tasks for each attorney.  Alternate attorneys can also be appointed.

The new powers of attorney must be witnessed by two witnesses, one of whom must be an eligible witness to sign affidavits (such as a lawyer or justice of the peace) or a medical practitioner. The witness must not be related to the principal or the attorney or a care worker or accommodation provider of the principal.

Enduring Powers of Attorney with supportive attorneys

Under Part 7 of the Act a principal may appoint a person to support them in making and giving effect to their decisions.  A supportive attorney is able to take any reasonable action or do anything reasonably necessary to give effect to a supportive decision, other than a decision about a significant financial transaction. 

The supportive attorney must discuss anything about a supported decision with the principal, in a way that the principal can understand and that will assist the principal to make a decision. 

This power of attorney only needs to be witnessed by two persons over the age of eighteen years, one must be authorised to witness a statutory declaration and is not a relative of the principal or attorney or a care worker or accommodation provider of the principal.

Enduring Powers of Attorney (Medical Treatment)

The provisions of the medical treatment at 1988 regarding Medical Treatment Powers of Attorney are unchanged. 

The new forms will be available prior to 1 September 2015.

 For more information regarding the changes to Powers of Attorney, please contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +613 8540 0200.