How an enduring power of attorney capacity assessment works in Victoria

An enduring power of attorney (EPOA) lets you choose someone you trust to make financial or personal decisions for you, including if you lose capacity later. To make one in Victoria, you must have decision-making capacity when you sign.

If someone has early dementia, a brain injury or another condition that affects thinking, families often wonder whether it is still possible. Below, each step is mapped out, along with what the law asks the person to understand and where a capacity assessment fits.

Steps in an enduring power of attorney capacity assessment

1. 1

   Planning ahead

   Ideally early, while things are going well

   What happens

   A person decides to choose someone they trust to make financial or personal decisions for them, if they cannot one day.

   What you can do

   Talk it through together. A lawyer or the Office of the Public Advocate can also explain the forms.

2. 2

   Is there any doubt?

   Before the document is signed

   What happens

   Adults are presumed to have capacity. A formal assessment helps when there is a diagnosis such as dementia, a brain injury, family disagreement, or a real chance the document will be questioned later.

   What you can do

   Ask the lawyer or doctor whether an assessment would be sensible.

3. 3

   Contacting us

   Day 0

   What happens

   The person, a family member, a lawyer or a doctor contacts us. No GP referral is needed. We confirm exactly which decision is being made and who needs the report.

   What you can do

   Tell us the planned signing date, and send any recent medical letters.

4. 4

   Preparing for the appointment

   Usually within about 2 weeks

   What happens

   We plan for the best time of day and a calm setting, and book an interpreter if needed.

   What you can do

   Bring glasses, hearing aids and a list of medicines. Choose a time of day when the person is usually at their best.

5. 5

   The assessment

   A few hours, with breaks

   What happens

   A conversation about the decision and what the document does, plus short tasks on memory, reasoning and understanding. With consent, we may speak with family or the lawyer.

   What you can do

   Let the person speak for themselves. Support is welcome, but the answers need to be theirs.

6. 6

   The report

   Usually 2 to 3 weeks

   What happens

   Our opinion about this specific decision, with our reasons and any supports that could help the person decide.

   What you can do

   Share the report with the lawyer who is preparing the document.

7. 7

   Signing

   Close to the assessment

   What happens

   The document is signed in front of two adult witnesses. One must be authorised to witness affidavits or be a medical practitioner. Both certify that the person appeared to have capacity.

   What you can do

   Sign as soon as practical after the assessment. Then keep the report with the signed document.

What enduring power of attorney capacity requires

Victoria’s Powers of Attorney Act 2014 describes decision-making capacity in general terms. A person needs to be able to understand the information relevant to the decision and its effect, retain it, use or weigh it, and communicate the decision in some way. They may do this with practicable and appropriate support.

For an EPOA specifically, section 23 says understanding the effect of the document includes understanding:

1. they can include conditions or instructions about how the power is used
2. when the power starts
3. once it starts, the attorney can do anything the person could do, within the power given
4. they can cancel it at any time while they have decision-making capacity
5. it continues even if they later lose decision-making capacity
6. if they lose capacity, they will not be able to effectively oversee how the power is used

A person does not need to remember every detail of their bank accounts. For example, someone with early memory problems may forget account numbers, but still clearly understand that the document hands control of their money to their daughter, and that they can cancel it while they are well. In short, that understanding is what the law is interested in.

When an enduring power of attorney capacity assessment helps

There is no rule that every EPOA needs a doctor’s or psychologist’s assessment. A formal capacity assessment can help when:

• the person has a diagnosis such as dementia, stroke, brain injury or intellectual disability
• family members disagree, or someone may challenge the document later
• the person’s thinking seems to change from day to day
• a large decision, such as a will or selling a home, is happening at the same time
• the lawyer or witnesses are unsure

The Act says capacity should be assessed at a time and in a place where it can be assessed most accurately. Illness, pain, tiredness, new medicines and stress can all affect thinking for a while. So if the person is unwell, it can be better to wait.

Signing and witnesses

An EPOA in Victoria must be signed in front of two adult witnesses, who sign in each other’s presence. This can happen in person or, in some cases, by video link. One must be authorised to witness affidavits or be a medical practitioner. Relatives of the person, the attorneys and their relatives, and care workers or accommodation providers cannot be witnesses. Each witness certifies that the person appeared to sign freely and appeared to have decision-making capacity.

A capacity report is extra evidence that sits alongside the witnesses’ certificates, showing the person’s capacity at that time.

If enduring power of attorney capacity is questioned later

VCAT can decide whether an EPOA is valid, and can suspend, cancel or vary an appointment. An assessment done close to the signing date gives clear evidence about the person’s capacity at the time it mattered. If a person can no longer make an EPOA, VCAT may appoint a guardian or administrator instead. Our article on VCAT guardianship and administration explains this.

Invictus Health कैसे मदद कर सकता है

Our neuropsychologists provide निर्णय लेने की क्षमता का मूल्यांकन for enduring powers of attorney, wills, medical decisions and other legal documents. You do not need a GP referral. The person, their family, a lawyer or a doctor can contact us. We choose a calm time of day, allow breaks, and can reschedule if the person is unwell.

Fees start from $3,300 including GST, and may be higher for complex questions. Medicare does not cover these reports. We give a written quote before you book. Reports are usually ready 2 to 3 weeks after the appointment, and are reviewed by Dr Judy Tang OAM. If cost is a barrier, please talk to us. We have these conversations all the time, and it’s OK to ask.