What we help with / Powers of attorney
Powers of attorney in Victoria
Documents that let someone you choose act for you when you can no longer decide for yourself. Victorian law only.
In short
- With an enduring power of attorney, a person you trust can handle your finances, your personal matters or both, and keeps working if you lose decision making capacity.
- You sign before two adult witnesses: one must be a doctor or authorised to witness affidavits, and neither can be a relative of yours or of your attorney.
- Medical treatment needs separate documents: an appointment of a medical treatment decision maker and, if you wish, an advance care directive.
- If you appoint no one and lose capacity, your family may have to ask VCAT to appoint a guardian or an administrator.
- Cost and next step: before work starts, we give you a fixed fee in writing or, where that is not possible, a written estimate. Call 1800 776 529. We reply within one business day.
What an enduring power of attorney does and when it starts
Your attorney can act for you in financial matters such as banking or selling a house, personal matters such as your living arrangements, or matters you specify (Powers of Attorney Act 2014 (Vic) s 22). The power survives loss of capacity, but it cannot cover medical treatment, wills or voting (ss 3, 26).
It starts when you choose: immediately, when you lose capacity, or at another time. If you say nothing, it can be used from the day it is made (s 39). You can still act for yourself (s 42).
Who can make one and who can be an attorney
You must be an adult who understands what you are signing, including when the power starts and that you can revoke it (s 23).
An attorney must be an adult, not an insolvent under administration, and not someone paid to care for you, your health provider, or the provider of your accommodation. A person convicted of an offence involving dishonesty can manage your finances only if they told you and the document records it (s 28). You can appoint several attorneys and alternatives (ss 30, 31).
Signing and witnesses
You sign the prescribed form (s 32) before two adult witnesses, who then sign it in your presence and each other’s (s 33). At least one of them must be a doctor (medical practitioner) or a person who can witness affidavits. Neither can be an attorney, a relative of yours or of an attorney, or your care worker or accommodation provider (s 35).
The witnesses certify that you appeared to sign voluntarily and with capacity (s 36), and each attorney signs an acceptance before an adult witness (s 37).
Medical treatment decisions
Under the Medical Treatment Planning and Decisions Act 2016 (Vic):
- Medical treatment decision maker: an adult with capacity can appoint one (s 26). The appointment must be in English, signed before two adult witnesses present together, one a doctor or an authorised affidavit taker, and accepted in writing (ss 28, 29, 36).
- Advance care directive: binding instructions about treatment, or your values and preferences (ss 6, 12). It must also be in English, with two witnesses: one a doctor, and neither your decision maker (ss 16, 17).
We go through both documents with you in Polish before you sign.
Can these documents be signed by video?
An enduring power of attorney can be signed electronically, with witnesses joining by audio visual link, if every step happens on the same day within Victoria. A special witness, such as a lawyer or a justice of the peace, must sign last and certify the procedure (Powers of Attorney Act 2014 (Vic) s 5A). The Office of the Public Advocate treats video as a last resort.
An appointment of a medical treatment decision maker and an advance care directive cannot be witnessed remotely. If everyone is in Victoria, we can arrange video witnessing of an enduring power of attorney.
What happens if no one was appointed
If you lose capacity and have no attorney, anyone can apply to VCAT (the Victorian Civil and Administrative Tribunal) for a guardian for personal matters or an administrator for financial matters (Guardianship and Administration Act 2019 (Vic) ss 22, 23). VCAT must be satisfied that, because of a disability such as dementia, you lack capacity, you need a guardian or administrator, and the order will promote your wellbeing (ss 3, 30).
For medical treatment, unless VCAT has appointed a guardian with that power, the decision falls to the first available person close to you in this order: a spouse or domestic partner, then your primary carer, then your eldest adult child, a parent, an adult sibling (Medical Treatment Planning and Decisions Act 2016 (Vic) s 55).
Questions
Have another question? Phone 1800 776 529 or send us a message.
A supportive attorney helps you gather information and communicate your own decisions (Powers of Attorney Act 2014 (Vic) ss 85 to 88). They cannot handle significant financial transactions such as selling a house, and have no role while you lack capacity (ss 89, 102).
Yes, while you have capacity. Revocation uses the prescribed form and two witnesses (ss 44 to 48).
Do not assume so. Property in Poland usually needs a separate document, in a form set by Polish law. See Power of attorney for Poland. A notarial document for Poland needs a visit to our Frankston office.
Law referred to
- Powers of Attorney Act 2014 (Vic) ss 3, 5A, 22, 23, 26, 28, 30 to 33, 35 to 37, 39, 42, 44 to 48, 85 to 89, 102
- Medical Treatment Planning and Decisions Act 2016 (Vic) ss 6, 12, 16, 17, 26, 28, 29, 36, 55
- Guardianship and Administration Act 2019 (Vic) ss 3, 22, 23, 30
Radek Dajer is an Australian lawyer and notary public who speaks Polish. He practises Australian law and does not advise on Polish law; for questions of Polish law, we bring in a lawyer or notary in Poland.
Plan ahead while you can decide for yourself.
Send an enquiry or call, and within one business day we will arrange a meeting in Polish or English.
Phone: 1800 776 529
Email: info@polishlawyer.com.au
Hours: Monday to Friday, 9 am to 5:30 pm
Office: 435 Nepean Highway, Frankston VIC 3199