You should have 100% certainty and peace of mind as to which family members or friends can make decisions pertaining to your key financial and medical matters. Don’t allow a potential future situation where your wishes are bypassed. By ensuring you have an Enduring Power of Attorney in place, you allow for the appointing and authorization of one or more people to manage your financial, legal, and medical affairs.
An Enduring Power of Attorney is designed to continue operation in the event that you lose your mental capacity; either by suffering from unsoundness of mind or a mental illness, which prevents you from physically managing your own affairs. Appointing an Enduring Power of Attorney is the best and most secure way to ensure that your wishes and your best interests are fulfilled. Make sure the right decisions are being made for you!
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.
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 in implementing their decisions but still possess the capacity to make such decisions.
- Decision-making capacity
The Act introduces a new definition for decision-making capacities and provides guidance on how it should be assessed to protect a person’s right to make their 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. 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.
Stay tuned for the next instalment on 10/11/16
Feel free to contact one of our DE property or finance specialists today on 9863 7621 or email for expert guidance, whether a home buyer, a residential or commercial investor, or purchasing through your SMSF. We’ll assess your specific legal and finance position and give you the peace of mind you need BEFORE signing any property contract or banking documentation.
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