Powers of Attorney 

A Power of Attorney is a document that appoints another person or persons to deal with your financial matters or personal matters or both. The person you appoint will have the power to deal with your affairs during your lifetime, usually only if you are not able to yourself. Your Attorney is different to your Executors who you may appoint in your Will. Your Executors only act after you pass away.

Who can be your Attorneys and How many Attorneys?

You may appoint anyone over the age of 18 to be your Attorney but you should appoint someone you trust. You may also appoint Alternate Attorneys who can act on your behalf if your first choice of Attorney has passed away or becomes incapable of being your Attorney.

Joint or Several Attorneys?

If you appoint more than 1 Attorney, you may appointment them ‘jointly’ or ‘jointly and severally’. By appointing joint Attorney’s, they must all agree and sign off on financial decisions on your behalf. By appointing Attorney’s jointly and severally, they can act on their own on your behalf without consultation with any other Attorneys you have appointed.

How can they be used?

Your Attorneys can request certified copies of your Power of Attorney which they can deposit with your financial institutions.

What Powers can you grant?

You can grant your Attorney a power to deal with your financial matters or personal matters or both.

Examples of financial matters:

•             making money available for your personal expenditure

•             paying your debts and expenses, or any of your dependant’s expenses

•             receiving and recovering money payable to you

•             carrying on any business you own

•             performing any contracts entered into by you

•             discharging any mortgage over your property

•             paying rates, taxes and insurance premiums or other outgoings for your property;

•             insuring your property

•             otherwise preserving or improving your property

•             making investments for you

•             undertaking any real estate transaction for you

•             withdrawing money from or depositing money into your bank account

Examples of personal matters:

•             where and with whom you live

•             persons with whom you associate with

•             whether you work and, if so, the kind and place of work and employer

•             whether you undertake education or training, the kind of education or training and the place where it takes place

•             daily living issues such as diet and dress

Is a Victorian Power of Attorney it recognised in other States?

Yes. All States and Territories recognise each other’s Powers of Attorneys, as long as they were made and witnessed in accordance with the laws of the State or Territory in which they were made.

When do the powers commence?

You may choose if you want the powers to commence immediately or upon the occurrence of a future event, usually if you lose the mental capacity to make your own decisions. Certainly, personal matters should only commence if you have lost capacity however, some elderly people commence their financial power immediately. This is to allow their Attorneys, usually their children, to pay bills or withdraw money from their bank.

Duties of your Attorneys

At law, Attorneys owe several duties to you. They also owe a common law duty known as a ‘fiduciary duty’. This is because the Attorney is in a position of trust. An Attorney:

•             must act honestly, diligently and in good faith; and

•             must exercise reasonable skill and care; and

•             must not use the position for profit; and

•             must avoid acting where there is or may be a conflict of interest unless the attorney is authorised by the power, the principal or VCAT; and

•             must not disclose confidential information gained as the attorney under the power unless authorised by the power or by law; and

•             must keep accurate records and accounts.

Consequences for breaching duties

In cases of serious breaches, like dishonestly, where the Attorney has misused large sums of money, the Attorney can be liable to imprisonment. The law states that an Attorney must not dishonestly use their powers to obtain a financial advantage or to cause loss to you or another person. Serious breaches carry a maximum of 5 years imprisonment and fines up to $99,000. The Attorney may also be ordered to pay compensation.