When can I use a Power of Attorney that I am appointed on?

When can I use a Power of Attorney that I am appointed on? 

When you can commence acting as an Attorney will depend on the commencement date of the document.

Enduring Powers of Attorney for financial matters will have a commencement date as either ‘immediately’, ‘upon incapacity’ or occasionally, ‘for a specific purpose’ (eg. to assist with the sale of a property). 

Enduring Powers of Attorney for personal matters can only be used when the principal (person making the document) no longer has the capacity to make their own decisions.

Capacity can be either temporarily or permanently lost.   

An Appointment of Medical Treatment Decision Maker commences when the person who prepared the document no longer has capacity to make their own decisions.

Medical evidence showing the person who prepared the document no longer has capacity is required before they can be used. 

Does a person require capacity to make a Power of Attorney or Will?

Yes, mental capacity is a requirement to be able to make and sign a Will and/or Powers of Attorney.

What happens if a loved one needs Powers of Attorney and they do not have capacity?

If a person requiring a Power of Attorney no longer has the capacity to provide instructions, an application can be made to VCAT to become that person’s administrator and/or guardian.  This process can be time-consuming and confusing. Further, this option leaves the decision of who is appointed to a member of VCAT, rather than with the person. 

I am married, do my partner and I need to appoint each other Attorneys?

No. There is no requirement to appoint your spouse. Being married or in a relationship does not give you the automatic legal right to make decisions on behalf of your partner, particularly financial decisions when there is an asset held in a sole name or jointly owned real estate.

I am an Attorney for my loved one, should I be keeping records of what I do?

Yes, it is important that an acting Attorney keeps records of all things they do under a Power of Attorney. This can be done by keeping a record of the date and the nature of the task undertaken in a notebook or on a spreadsheet on your computer.  You should also keep copies of all ATM and bank transaction receipts you have made on behalf of the person you are acting for, together with a brief explanation of the reason behind the transaction and any relevant receipts.

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