Capacity to make an enduring power of attorney in Victoria

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

If you or a family member has dementia, a brain injury or another condition that affects thinking, you may wonder whether it is still possible. This guide explains the capacity needed, what witnesses check, and when a formal assessment can give everyone more confidence.

What an enduring power of attorney does in Victoria

In Victoria, enduring powers of attorney are made under the Powers of Attorney Act 2014, which started on 1 September 2015. The person making the document is called the principal. The person they appoint is the attorney.

The Office of the Public Advocate (OPA) explains that an enduring power of attorney can cover:

• financial matters, such as paying bills or managing property
• personal matters, such as where you live
• or both.

You can choose when the power starts. It can begin straight away, or only when you no longer have capacity for the relevant matters.

An attorney cannot make medical treatment decisions unless you also appoint them as your medical treatment decision maker. That is a separate appointment under the Medical Treatment Planning and Decisions Act 2016.

Supportive attorneys

The Act also lets a person appoint a supportive attorney. According to the Department of Justice and Community Safety, a supportive attorney helps the person access information, communicate and act on their own decisions, without deciding for them.

The capacity needed to make one

You need decision-making capacity to make an enduring power of attorney, and to cancel (revoke) one. Adults are presumed to have capacity unless there is evidence to the contrary.

OPA explains that you have decision-making capacity if you can:

• understand the information relevant to the decision and its effect
• retain that information long enough to make the decision
• use or weigh that information in making the decision
• communicate the decision and your views in some way.

You still have capacity if you can make the decision with practicable and appropriate support. Capacity is also decision-specific. Someone may not be able to manage complex investments, yet still understand that they want their daughter to handle their money if they become unwell.

For example, a person with early memory problems might forget some details of their bank accounts. They may still clearly understand that the document hands control of their money to their chosen attorney, that the attorney could act without checking with them, and that they can cancel it while they are well enough. That understanding is what the law is interested in.

The role of witnesses

An enduring power of attorney in Victoria needs two adult witnesses. One must be authorised to witness affidavits or be a registered medical practitioner.

Some people cannot be witnesses. OPA lists relatives of the principal, the attorneys and their relatives, and care workers or accommodation providers.

The witnesses certify that the principal appears to:

• have decision-making capacity
• understand the effect of the document
• sign freely and voluntarily.

The Act allows electronic signing and remote witnessing by audio-visual link in some circumstances, with extra steps. Your lawyer can explain whether this suits your situation.

Witnesses make an observation, not a full clinical assessment. If they have doubts, a formal assessment before signing can protect everyone.

When a formal capacity assessment can help

Many people make an enduring power of attorney without any assessment. A formal assessment is worth considering when:

• the person has a diagnosis of dementia, mild cognitive impairment, stroke or brain injury
• the lawyer or witness is unsure whether the person understands the document
• there is family disagreement about who should be the attorney
• an existing document is being replaced with a very different one
• there are concerns about pressure or financial abuse
• a later challenge at VCAT seems likely.

A neuropsychologist (a psychologist who specialises in how the brain affects thinking and behaviour) can assess both the thinking skills involved and the person’s understanding of the actual document.

An assessment does not prevent a later challenge. It does create clear, independent evidence of the person’s abilities at the time of signing, which is much harder to reconstruct years later. It can also show where the person needs support, such as simpler explanations or more time.

What the assessment involves

The clinician talks with the person alone about the enduring power of attorney they want to make. Clinicians commonly explore whether the person understands:

• what an enduring power of attorney is and what powers it gives
• who they are appointing, and why they trust that person
• when the power will start
• that the attorney can act when the person is not able to supervise them
• that they can cancel it while they still have capacity
• what could go wrong, and any limits or instructions they want to include.

This is usually combined with tests of memory, reasoning and language, and a review of medical history. The report explains the clinician’s opinion and the reasons for it.

OPA also suggests you might include an instruction that your attorney must get an independent assessment of your capacity before acting. This can help if the power is set to start only when you lose capacity.

Practical tips for families

• Act early. It is easier to show capacity soon after a diagnosis than later.
• Let the person speak for themselves in appointments with the lawyer and clinician.
• Bring the draft document and any earlier powers of attorney to the assessment.
• Tell the clinic about hearing, vision, language or cultural needs beforehand.
• Keep the assessment report with the signed document in a safe place.

If it is too late to make one

If a person no longer has capacity to make an enduring power of attorney and needs a substitute decision maker, someone can apply to VCAT. VCAT can appoint an administrator for financial matters or a guardian for personal matters. A recent medical report is required.

The Act also includes protections. VCAT can order compensation for loss caused by an attorney who breaks the Act. Dishonestly obtaining or using an enduring power of attorney is a criminal offence.

Invictus Health 能提供哪些帮助

Our neuropsychologists provide 决策能力评估, including for enduring powers of attorney, wills and other legal documents. If there is a dispute, we also provide medico-legal assessments. Neuropsychology reports are reviewed by Dr Judy Tang OAM.

Our head office is in Preston, and we have clinics across Australia. No GP referral is needed for most assessments, so you can book directly. This article is general information and is not legal advice. Please speak with a lawyer or other qualified professional about your situation.