The Powers of Attorney Act 2014 (“ the Act ”) introduced significant changes to enduring powers of attorney in Victoria. The changes under the Act, outlined below, came into force on 1 September 2015.
The Act:
- Introduces a new enduring power of attorney form;
- Changes some formalities surrounding enduring powers of attorney;
- Introduces a new ‘supportive attorney’;
- Defines the duties of an attorney; and
- Creates new offences for attorneys.
Importantly, the Act does not invalidate any pre-existing enduring power of attorney and it does not make any changes to enduring powers of attorney for medical treatment.
There is some new terminology in the Act. The person giving the power is now referred to as a ‘principal’ (previously donor). General powers of attorney are now referred to as ‘non enduring powers of attorney’.
‘Enduring Power of Attorney’ (“EPA”)
The Act has introduced a new enduring power of attorney form which is entitled ‘Enduring Power of Attorney’ or ‘EPA’. EPA combines the documents which were previously known as ‘ Enduring Power of Attorney (Financial) ’ and ‘ Enduring Power of Guardianship ’.
The Act now labels guardianship matters as ‘personal matters’. Personal matters have been expanded to include:
- Deciding where and with whom the principal lives;
- Deciding which persons the principal associates with;
- Deciding whether and where the principal works;
- Deciding whether and where the principal undertakes education or training;
- Deciding daily living issues such as diet and dress; and
- Deciding health care matters.
Under the Act it is now possible to appoint more than one personal attorney in the same manner that was previously only available to the appointment of financial attorneys.
Additionally, the Act now allows for the appointment of ‘majority attorneys’.
Although the new EPA form now allows for the appointment of financial attorneys and personal attorneys in the one document, there are situations where separate documents are preferable. Fortunately, the Act provides flexibility on whether a combined document or separate documents are used.
FORMALITIES
The Act has amended the witnessing requirements for EPAs. Previously, two witnesses were required to be present, with one being authorised to witness statutory declarations. It is now a requirement that one of the two witnesses is authorised to take affidavits or be a medical practitioner.
There is now a prohibition on the witnesses being related to the principal or to any attorney appointed in the EPA. There is also a prohibition on the witnesses being care workers, health providers or accommodation providers for the principal.
Furthermore, there is a prohibition on the principal appointing a care worker, health provider or accommodation provider as their attorney. The Act is referring to professional care workers and accommodation providers. Centrelink carer’s pensions are specifically excluded from consideration when determining whether an attorney is a care worker for the principal. Similarly, a principal that resides with an attorney is permitted provided the attorney is not acting as a professional accommodation provider for the principal.
SUPPORTIVE ATTORNEY
A supportive attorney is a person who is authorised to exercise any of the following powers:
- Information power;
- Communication power; or
- Giving effect to decisions.
Supportive attorneys are unable to assist in ‘significant financial transactions’ (defined generally as a transaction dealing with land or finances in excess of $10,000.00). Additionally, a supportive attorney is only able to exercise their powers whilst the principal retains capacity.
DUTIES
The Act now outlines the duties of an attorney. These duties are as follows:
- Act honestly, diligently and in good faith;
- Exercise reasonable skill and care;
- Not use the position for profit;
- Avoid acting in a conflict of interest;
- Not disclose confidential information; and
- Keep accurate records and accounts.
OFFENCES
It is now an offence for an attorney to obtain or to use an EPA to obtain financial advantage or to cause loss to the principal. A fine of up to 600 penalty units or up to 5 years imprisonment can apply where an attorney is guilty of an offence.
Additionally, an attorney who breaches their duties and causes loss to the principal will be liable to indemnify the principal or the principal’s estate.
It is important to note that the new offence provisions under the Act will apply to all attorneys, whether authorised under the (new) Act or the Instruments Act 1958 .
Finally, attorneys are now unable to enter into ‘conflict transactions’. A conflict transaction is simply a transaction that conflicts between the interests of the principal and the attorney, or a relative, associate, or close friend of the attorney. A principal may authorise an attorney to conduct conflict transactions in the EPA document and it is therefore important to consider what type of conflict transactions should be permitted at the time of preparing the EPA.
Enduring powers of attorney remain an essential part of all estate plans. Should you wish to discuss any of the new changes or would like to know more on these issues, please contact Jesse Rankine on 03 5226 4106 or by email at .
