If you have been appointed as someone’s attorney or if you are thinking about putting an enduring power of attorney in place (to enable someone to make decisions on your behalf should you become unable to), then consider the below:
The Powers of Attorney Act 2014 (the Act) commenced on 1 September 2015. Any powers of attorney made before September 2015 will remain valid under the new Act. The Act does not affect enduring powers of attorney (medical treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.
General powers of attorney which are referred to as non-enduring powers of attorney will undergo minor changes and remain largely governed by the previous statutory and common law provisions.
About the changes
The Act has consolidated the old “enduring power of attorney (financial)” and “enduring power of guardianship” into a single “enduring power of attorney”. The Act aims to improve protections against abuse of enduring powers of attorney as follows:
- Supportive guardian People with a disability can now appoint a “supportive guardian” to help them take more control in their decision-making. It is intended to be a practical solution for people who require assistance implementing their decisions but still possess the capacity to make such decisions. This new role will also provide peace of mind for third parties, allowing them to liaise with the supportive guardian more confidently than if the relationship were informal.
- Decision-making capacity The Act introduces a new definition of decision-making capacity and provides guidance about how it should be assessed to protect a person’s right to make its own decisions where possible. The Act makes it clear that a person is presumed to have decision-making capacity unless there is evidence to the contrary.
- More stringent execution requirements The Act introduces more stringent requirements for the making and revoking of enduring powers of attorney.
- New offences created New offences have been created to protect principals from abuse. The Act prohibits an attorney from dishonestly obtaining financial advantage or using an enduring power of attorney. The new offences are punishable by up to five years’ imprisonment.
- VCAT powers The Act gives VCAT additional power to order compensation for any loss caused by the attorney. This power was previously held only by the Supreme Court.
- Conflict-free transactions The Act introduces new provisions that expressly prohibit conflict of interest transactions, unless authorised by the Principal or VCAT.
Please contact Steven Dangerfield or Simon Exley for more information or a complimentary and frank discussion on your role of being an attorney or if you wish to put an enduring power of attorney in place.
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