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COMPARISON-POWERS OF ATTORNEY & GUARDIANSHIP

COMPARISON POWERS OF ATTORNEY AND GUARDIANSHIP IN MELBOURNE

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Comparative Table for Powers Of Attorney & Guardianship

General power of attorney

A general power of attorney is a legal document. By signing it, you authorise a person to make financial and legal decisions for you.

Most people use this type of power of attorney for short-term needs. For example:

You will need a legal document signed while you are on holidays; or

You want someone to buy property on your behalf.

If you just need money withdrawn from your bank account to pay bills, you may not need a power of attorney. Most banks can arrange this through an authorisation.

Financial enduring power of attorney

A financial enduring power of attorney is a legal document. By signing it, you authorise a person to make financial and legal decisions for you.

The main difference between this and the general power of attorney is that a financial enduring power of attorney is valid even if you become mentally incompetent.

This type of power of attorney is often used to plan the future. For example, if you become ill while overseas a financial enduring power of attorney would enable your attorney – the person YOU have chosen – to make financial decisions for you during your illness.

Medical enduring power of attorney

A medical enduring power of attorney is a legal document. By signing it, you authorise a person to make health care decisions for you.

This power of attorney is often used to plan. There is always the possibility that one cannot make decisions because of age, illness, or accident. If you have appointed an attorney, that person will have the authority to decide about your medical care in consultation with doctors and other relevant people. If you have not signed a medical enduring power of attorney, it may be necessary to apply to the Victorian Civil and Administrative Tribunal for the appointment of a substitute decision maker.

Enduring power of guardianship

An enduring power of guardianship is a legal document. By signing it, you authorise a person to make personal and lifestyle decisions for you.

This type of power of attorney is often used to plan. There is always the possibility that one cannot make decisions because of age, illness of accident. If you have appointed a guardian, that person will have the authority to decide about personal issues, such as where you live. If you have not appointed an enduring guardian, it may be necessary to apply to the Victorian Civil and Administrative Tribunal for the appointment of a substitute decision-maker.

What can my attorney do?

This depends on you. You can limit the decisions that the attorney can make simply by writing this on the document. For example:

You might want the attorney to only do certain things, or you might want o give them broad powers; or

You might want the power attorney to last for two weeks or two years.

What can my attorney do?

Your attorney can make any legal and financial decision that you can make. However, remember, you cannot limit an attorney’s powers in the same way that you can in a general power of attorney.

Therefore, if you only want to appoint an attorney for a short time, perhaps you should use the general power of attorney rather than a financial enduring power of attorney.

What can my attorney do?

Your attorney can only make decisions for you IF you become mentally incompetent.

If this occurs, your attorney can make decisions about your medical treatment. For example:

  • An operation; or
  • Medicines, drugs, etc.
     

Can my attorney refuse treatment?

As well as deciding what treatment is appropriate, your attorney can also refuse treatment on your behalf.

To do this your attorney must:

Have sufficient information about your state of health; understand this information; and sign a Refusal of Treatment Certificate. Most hospitals have these certificates. There must also be reasonable evidence that you would have considered the treatment unnecessary or that it would cause you unreasonable distress.

Your attorney CANNOT refuse food and water or reasonable pain relief.

What can my guardian do?

Your guardian can only make decisions for you IF you become mentally incompetent.

If this occurs, your guardian can make decisions about personal and lifestyle issues. The extent of these powers depends on whether you included all the powers of a guardian or specific powers.  

Can my guardian refuse treatment?

As well as deciding what treatment is appropriate, your guardian can also refuse treatment on your behalf.

If this happens, the treating doctor can only provide treatment if they believe it be in your best interests. The doctor must also give your guardian the opportunity to apply to the Victorian Civil and Administrative Tribunal, which have ultimate power to make a decision about what to do.

If you have appointed one person as attorney under an enduring medical power of attorney and another as a guardian under an enduring power of guardianship. A conflict of powers could arise.

General power of attorney

Financial enduring power of attorney

Medical enduring power of attorney

Enduring power of guardianship

MULTIPLE ATTORNEYS

If you do this, you must decide whether you want your attorneys to make decisions “jointly,” or “jointly and severally.” “Jointly” means that both attorneys have to agree with the decision they make. “Jointly and severally” means that either attorney can make a decision by himself or herself.

There are no set rules about what you choose; it depends on your circumstances. For example; appointing attorneys to make decisions jointly and severally could be useful if one of your attorneys travels a lot; or if you want two people to make decisions for you and you do not fully trust the judgement of one of them, then you can appoint them to make decisions jointly.

MULTIPLE ATTORNEYS

You can choose to have an alternate attorney, i.e. a person who can make decisions if the original attorney is unavailable. The alternate attorney can only make decisions for you if they sign a statutory declaration that says the original attorney is dead, mentally incompetent or cannot be contacted.

DOES IT LAST FOREVER?

No! This type of power of attorney will last until:

  • You cancel it;

  • You die;

  • You cannot make your own decisions, i.e. you become mentally incompetent;

  • You become bankrupt; or

  • The expiry date that you write on the document has passed.

DOES IT LAST FOREVER?

This type of power of attorney will last until:

  • You cancel it (you must be mentally competent to do this);

  • You die;

  • You become bankrupt; or

  • The Victorian Civil and Administrative Tribunal cancel it because it is not being used in your best interests.

DOES IT LAST FOREVER?

This type of power of attorney will last until:

  • You sign a new medical enduring power of attorney;

  • You cancel it (you must be mentally competent to do this);

  • You die; or

  • It is cancelled or suspended by the Victorian Civil and Administrative Tribunal because it is not being used in your best interests.

General power of attorney

Financial enduring power of attorney

Medical enduring power of attorney

Enduring power of guardianship

HOW DO I CANCEL IT?

You can:

Simply tear up the power of attorney; and/or

Tell the attorney that the power of attorney is cancelled.

It is a good idea to make this cancellation formal. So either write a letter saying, “I cancel my power of attorney” or use the Cancellation of Power of Attorney form.

In addition, do not forget to tell your banks or other agencies that have dealt with the attorney.

HOW DO I CANCEL IT?

You can:

Simply tear up the power of attorney; and/or

Tell the attorney that the power of attorney is cancelled.

It is a good idea to make this cancellation formal. So either write a letter saying, “I cancel my power of attorney” or use the Cancellation of Power of Attorney form.

In addition, do not forget to tell your doctor or other agencies that have dealt with the attorney.

HOW DO I CANCEL IT?

To cancel an enduring power of guardianship, you need to fill in a form called Revocation of Appointment of Enduring Guardian.

This form must be witnessed by two people – one of these must be authorised to witness a statutory declaration, e.g. doctor, lawyer, bank manager, police officer etc.

Formalities

Witnesses:

General power of attorney – one witness

Formalities

Witnesses:

Financial enduring power of attorney – one witness

Formalities

Witnesses:

Medical enduring power of attorney – two witnesses.

One witness must be authorised to witness statutory declarations, e.g. doctor, lawyer, bank manager, police officer, etc.

Your attorney cannot be a witness

The witnesses must verify that you are mentally competent when you sign the document.

Formalities

Witnesses:

Enduring power of guardianship – two witnesses.

One witness must be authorised to witness statutory declarations, e.g. doctor, lawyer, bank manager, police officer, etc.

The witness cannot be the guardian or a relative of either you or the guardian.

The witness must verify that you are mentally competent when you sign the document.  

Acceptance of appointment:

The only power of attorney that requires acceptance of appointment by the attorney is the enduring power of guardianship.

NEED MORE INFORMATION

Behan Legal advises and assists on these important issues. For an appointment, call 03 9646 0344 .

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