This session was part of the Advocacy Sector Conversations forum held on 30 July 2015 at the Queen Victoria Women’s Centre in Melbourne. Other sessions at this forum included:
- Setting the scene for housing services in Victoria
- Advocacy and housing
- Q&A with the Office for Disability
Commencing 1 September 2015, the Powers of Attorney Act 2014 will come into effect. Lucinda Edselius, Senior Project Manager, Civil Justice Projects and Kerry Harrison, Legal Policy Officer, Department of Justice provided an overview of the new legislation and explained the introduction of the new supportive attorney appointment provision which will enable people to exercise their decision making capacity longer than current legislation provides
Resources mentioned during the session include:
- Take Control – a guide for making enduring Powers of Attorney
- Powers of Attorney Act
Transcript & audio
Thank you everybody, this is our second last session for the day. I hope your energy levels are fabulous and ready for the next session. I’m just going to introduce our next two speakers and then I’ll move away from the podium.
Commencing the 1st of September the Powers of Attorney Act 2014, will come into effect. Lucinda Edselius, Senior Project Manager at Civil Justice Project and Kerry Harrison Legal Policy Office in the Department of Justice are going to provide us with an overview of the new legislation and explain the introduction of the new supportive attorney appointment position, which will enable people to exercise their decision-making capacity longer than current legislation provides.I am really looking forward to hearing this presentation and hearing more about the new legislation. Lucinda will take the microphone first, over to you Lucinda and thank you.
Thanks you very much Robyn, good afternoon everybody and thank you very much for squeezing us into your hectic schedule. We are delighted to be able to come to speak to you today given the imminent commencement of this legislation on the 1st of September. Kerry and I work together in the Civil Law Policy area of the Department of Justice and Regulation and we have shared responsibilities in relation to the lead up of this legislation commencing.
My role is to undertake community education and information leading up to the commencement of the legislation. Kerry is working particularly on the prescribed forms and the online forms which will go onto the website for The Office of the Public Advocate and we hope will provide better access to the community to the opportunities offered by this legislation.
I thought I would start by talking a little bit about our strategy to inform the community and to enable the opportunities in this law to be accessed then I will hand over to Kerry who will go through the provisions in this law with more detail. Please feel free to interject at any time with questions or comments. If you do not understand something and want it clarified, please let us know. We have handed out the presentation slides so you can make notes if you wish as we move along. There are further copies of them on each table and on the table at the back.
In approaching the education and communication of this legislation to the community, we first of all looked at the very wide range of peak bodies who are already engaged with our target audience. Our target audience is extremely broad because at the simplest level it is every citizen in Victoria. No small job for one and a half, two people, to take on to let them know, it has certainly been very busy. At times, I have felt it is like the introduction of rabbits to Australia. Every time I identify a peak body there is another five peak bodies connected with it I need to be in touch with. So forgive me if I have not been in touch with you directly, you are all very much in my mind and for that reason, I do see today as being a critical occasion for us to talk about this legislation and answer your queries.
We had a look at people operating in the field and we identified specific target audiences within the community of Victoria as whole. These audiences can be divided into two groups. First of all, people to who the legislation is of direct relevance either personally because they are of an age where powers of attorney are very relevant, because the new appointment of a supportive attorney will offer them new opportunities, or professionally because we will rely on their professional services and expertise to make this legislation work. Those professional groups can be divided into medical practitioners, legal practitioners and financial practitioners who we will require to recognise these instruments. More recently we have bene working with law enforcement practitioners because as Kerry will discuss there are increased safe guards being introduced in this legislation and of course we need people to enforce those safe guards so people can be protected from abuse of the roles.
We started out by working with peak bodies such as the Royal Australian College for General Practitioners, the Australian Medical Association and a whole range of peak bodies who represent different branches of the medical profession. We worked with the Australian Banking Association, Financial Planners Association of Australia and the Customer Owned Banking Association. We are working with Victoria Police of course and the Law Institute of Victoria to ensure legal professionals are informed.
Then looking at community groups, we wanted to try to address the lack of awareness that exists in certain sectors of Victorian society. There are a couple of committees who wrote reports in 2010 and 2012, those reports were basically the genesis for this legislation. In the process of doing the research that led to those reports it was identified that certain groups within Victorian society particularly lack awareness of powers of attorney. You could probably imagine they tended to be people who recently arrived in the country so often culturally and linguistically diverse groups, also Koori Victorians, there was a lack of awareness among Koori Victorians and some cases regional and some cases Metro Melbourne Victorians. We have been doing some very careful work with peak bodies who represent in particular the culturally and linguistically the diverse members of our society. Also Koori members of our society to try to work out if there are certain obstacles specific to those community groups, which we can overcome to spread the word about powers of attorney so at least people have the opportunity to investigate if they wish to. It has been very satisfying work, very enjoyable and I have to say the only group of stakeholders who have been nervous about this legislation have been the bankers who are just worried about recognizing everything. Everybody else has been remarkably enthusiastic so it’s been a joy to work on this project.
I think I will stop there and handover to Kerry. If anybody has questions about communicating these reforms or anything that we’ve tackled in the education field, then please feel free to approach me afterwards or I think you may be moving straight into your next session, so you’re very welcome to get my email address from Robyn and send me an email. I would be delighted to send you further information or provide you with anything that would help you to let your constituents know about the legislation.
Again thank you for having us today. My plan today is to give you an overview of Powers of Attorney as well as the new supportive attorney arrangements and to put it in a bit more context. Unfortunately, like with a lot of laws they’re quite dry. I will endeavour to try and make it as interesting as we can but please feel free as Lucinda said to make comments or ask any questions as we go along as well.
Some of the key lessons I’d like you to take away from today is what is the Power of Attorney, why are they important, what does the new Power of Attorney Act do and where can you get further information?As Lucinda mentioned there was a Victorian Parliamentary Law Reform Committee Report back in 2010 and I was involved in that as the research officer. That Parliamentary Committee Report acknowledged that a lot of Victorians don’t know what a Power of Attorney is. Powers of Attorney are not as widely understood, used or recognised as they could be, in fact, even those who have Powers of Attorney may not understand the difference between different types of Powers of Attorney and how you can go about making them. Even when you do have a Power of Attorney, there is no guarantee that a service provider such as a bank or hospital will recognise it.
What is a Power of Attorney – briefly, a Power of Attorney is a document that you make when you have decision-making capacity. You have to be an adult and it involves appointing another person, an adult, who also has decision-making capacity to make particular decisions on your behalf. Impending on which Power of Attorney you make they may relate to financial, personal or medical decisions. In Victoria at the moment, there are currently four different types of Power of Attorney under three different Acts. It’s quite confusing and this is one of the issues that the Parliamentary Committee recognised that there is far too many laws and it’s quite confusing for people.
In terms of the current types of Power of Attorney – have general powers of attorney which are basically those that you make when you have capacity but they’re only for a particular time or circumstance and they only operate while you have capacity. For example, if you go on holidays you might want someone to do your banking – you can make a general power of attorney for that.In terms of Power of Attorney for financial matters, again you have to have capacity but they can start or what we call endure, that means continue after you lose capacity and that’s what’s important about enduring powers. They are made under what’s currently called the Instruments Act.
A third Power of Attorney we have which you may have come across in your work is Enduring Powers of Guardianship, which are currently made under the Guardianship and Administration Act. They relate to making decisions related to personal, lifestyle, some health care decisions but they only operate once you’ve lost decision-making capacity.
The fourth type is Enduring Powers of Attorney relating to medical treatment. They are made under another Act called the Medical Treatment Act and that relates to appointing what’s called an Agent to make medical decisions but only again once, you lose capacity.
Who actually has the Power of Attorney Victoria – Bart Simpson doesn’t look like he does. Powers of Attorney are private documents in Victoria, you can’t register them anywhere so they’re often referred to as being put in the bottom draw. It’s very difficult to have data on who actually has the Power of Attorney. There have been a couple of studies and anecdotal evidence suggests perhaps only around 10% of the population actually has Powers of Attorney. They’re often Enduring Powers of Attorney relating to financial matters, which I mentioned previously. Often those people who have Powers of Attorney are highly educated, on high incomes and interestingly they’re women. That is different obviously compared to those who don’t which are often people on low incomes, from lower socio economic backgrounds and people with disabilities and also from coal communities as well.
What are some of the barriers to making a Power of Attorney – there is a general lack of awareness in the community, which is what Lucinda referred to earlier and again that’s a moxos group of people that often don’t have powers, poor community, people with a disability, and people with low income. It’s also a very complex legal regime, which I just alluded to. There is very many different requirements, different forms and people often prefer just to rely upon informal arrangements within their family rather than make something formally. Also from a psychological perspective people are often very reluctant to consider issues around death and disability, particularly young people and also the thought of having to deal with the law or in fact lawyers.Cost is an issue as well. It can be difficult to make some of these documents without legal assistance. Family dynamics, often people trust their family members to manage their affairs but also cultural notions of who is the family decision maker. Sometimes people don’t want to create family tensions by choosing between one child over another in terms of appointing attorneys if they need to. There is also a fear of abuse in terms of a fear of losing control and also the potential for abuse in having a Power of Attorney as well.
One of the reasons Powers of Attorneys are important is they allow your voice to be heard. For instance if you are dealing with third parties like banks and hospitals it provides them with a document that outlines who is actually your decision maker and particularly in circumstances where you don’t have decision making capacity. They can be a simple flexible and low cost way of planning ahead. They can empower you to make arrangements for when you actually lose your decision-making capacity, they can provide search for third parties, which I just mentioned. They can avoid the need for a VCAT order and that relates to administration or guardianship orders, which may well occur in circumstances when you don’t have any Enduring Power of Attorney, you’ve lost capacity and there is a need for someone to make a decision on your behalf.
However, there is abuse of Powers of Attorney and one of the main areas of abuse unfortunately is within families. Abuse is not uncommon, it’s often by close family members, is very rarely detected and reported and that’s one of the issues that Parliamentary Committee heard evidence about. There is very, very little reporting, very few cases that went to court. We had a legal intern who was trying to do research in relation to the report and she found I think about five court cases over a number of years that related to Enduring Powers. People are very reluctant to take their family members to court. Once, in particular an attorney uses your money and has the power to do that it can be very difficult to recover that as well.
So why do we need a new Power of Attorney Act – as Lucinda mentioned there has been two recent reports that have been the impetus for this new Act. The Parliamentary Committee Report, which made ninety recommendations and the main recommendations, which are actually included in the new Act, relate to consolidating Enduring Power of Attorney, which I will come to in a moment, providing better assessment of decision-making capacity, better safeguards against abuse. As well as we also have the Victorian Law Reform Commissions Guardianship Find Report in 2012, this made 440 recommendations. About a quarter of them related to Powers of Attorney or Supportive Attorneys.
What are some of the reforms that the Powers of Attorney Act introduces – first of all, in relation to General Powers of Attorney, they’ve change the name, they’re called Non Enduring Powers of Attorney. These are the Powers of Attorney I mentioned earlier that you make for a particular time or period for instance when you’re on holidays and you want somebody to do your banking. In relation to Enduring Powers of Attorney for medical treatment there has been no change, they’re regulated under a different Act and the Parliamentary Committee was not asked to look at those powers so they will remain unchanged.In relation to terminology and this is an important change, the Act introduces consistent terminology. At the moment, we have different names for different people who make the powers as well as the people who they appoint. For instance, in relation to an Enduring Power of Guardianship, the person who you appoint is called an Enduring Guardian and the person who appoints is called an Appointer. Whereas an Enduring Power of Attorney for financial you have a Principal who appoints and the Attorney is the person you appoint. Under the new Act, the person who appoints under a Power of Attorney is called a Principal, the person you appoint is called an Attorney.
What is decision-making capacity – decision-making capacity is a key reform because currently under the laws there is very little guidance as to what is capacity yet is a fundamental element of making a Power of Attorney. The new Act provides a new definition of capacity and it has four elements. In terms of the actual definition, it comes from a number of other jurisdictions particularly the UK. The UK has what’s called the Mental Capacity Act and there is also the QLD Powers of Attorney Act, which has a number of guidance in relation to capacity as well. There are four elements – you need to understand the information, you need to retain the information that’s necessary to make the decision, you need to be able to use and weigh up that information and once you’ve made the decision you need to be able to communicate it. That communication can be in a number of ways including by speech, gestures or other means.
The Act also provides better guidance on what is decision-making capacity when you’re in the process assessing whether somebody has decision-making capacity. First of all, it includes a new presumption. A presumption that in fact you have capacity unless there is evidence to the contrary and that’s based on particularly the UK Act. Also, it says that in fact, you may have capacity for some matters and not for others and that’s important in relation to the different Powers of Attorney. For instance, you might be able to make a decision about where you want to live but you might not be able to make decisions about how you want to do your banking and how you want to make investments etc. Also a person’s capacity may be temporary and not permanent and that’s particularly important particularly in relation to people who may have a disability, they’re capacity may fluctuate from one day to another depending on circumstances. Also, somebody may have capacity if they can make a decision with the appropriate and practical support and that’s where Supportive Attorneys comes in and I will refer to that a little later.
Also in relation to guidance on capacity, you should not assume that a person doesn’t have capacity because of their appearance. In fact somebody might make a decision that you consider unwise however it is not considered that somebody doesn’t have capacity unless of course it has a high risk of causing serious injury to that person’s health or wellbeing.The Act also introduces principles to consider when you’re acting under the new Act for a principal who does not have capacity. That is you must act in a way that is as least restrictive for the principals ability to make decisions and give as much practical support as possible to enable that principal to make decisions.
What is an Enduring Power of Attorney under the new Act – under the new Act, it introduces what we call a Consolidating and Enduring Power of Attorney. That actually consolidates what is currently, and this is where it all gets a little confusing, but what is currently an Enduring Power of Attorney for financial matters as well as what we call an Enduring Power of Guardianship. At the moment they’re two different Acts, we’re bringing them together under this new Act.
Under the new Act, you can make a Consolidated Enduring Power of Attorney for financial, personal matters or both. A financial matter for instance is making an investment, personal matter is where you live. Importantly the Act also defines what is a personal and financial matter and also gives you examples of what may be a personal or financial matter. Those examples are not exhaustive but they give you some guidance to think about when making a Power of Attorney. They’re generally based on what’s in the Qld Act, which also has a Consolidating Enduring Power of Attorney. Qld made these amendments back in 1998. It’s taken us a while to get around to it.
What do you need to do to make an Enduring Power of Attorney – if you’re the person making the power you need to be 18 years of age, you need to have decision-making capacity and you need to use what we call the prescribed form as a minimum. Lucinda referred to the forms a bit earlier. Basically, the prescribed forms, which are what I have been working on with some colleagues, set out what is the bare minimum you need to have in a form in terms of making a Power of Attorney. We’re making seven prescribed forms at the moment and they will be in what we call Regulations, which will be made in a few weeks’ time.
We’re also at the same time working with the Office of the Public Advocate to make online forms. There will be seven online forms. Those online forms will have not only what’s in those prescribed forms but they will be set out in easy English as far as possible except unfortunately some of the certification requirements we can’t change the language. You will also be able to fill them out online except you have to print them to sign them. We’re hoping that will assist people in being able to encourage people to being able to make Powers of Attorney as well.
In addition to that, the Office of Public Advocate is updating what’s called the Take Control Kit. Some of you might be aware of that, it’s quite a popular publication that OPA in particular distributes thousands and thousands of copies of at the moment. They’re updating that to make it consistent with the new laws. They’ve also been developing what we’re calling a Supportive Attorney Guide and that will specifically be in relation to the new Supportive Attorney Appointments, which I will get to shortly.
In relation to making decision-making capacity for the Enduring Power, the Act gives you even more guidance than the definition. I will flick through these quickly. Basically, it says a Principal in making an Enduring Power of Attorney should understand they can place conditions and instructions in their Power of Attorney. They should understand when the power commences and once the power is exercised by an Attorney that Attorney has the same power as the Principal would’ve had when they had capacity in relation to that particular matter. Also, the Principal with capacity may be able to revoke. Revoke means cancel but unfortunately, the Act uses the word revoke, which is a very legal term. You see in the forms when they come out they use the word revoke but in brackets as much as possible we’ve put cancel as well.
Also, as I mentioned earlier an Enduring Power of Attorney will continue after you lose capacity to make decisions for a particular matter. That’s where enduring powers are really quite important. Also, a principal is not able to effectively oversee the use of power when they no longer have capacity.
Who can you appoint to be your Enduring Attorney under an Enduring Power of Attorney – for an individual it has to be an adult, they cannot be insolvent, they can’t be your care worker, health or accommodation provider however they can be the occupant of position. For example, they can be the public advocate. Again, the public advocate can be appointed for personal matters.
For financial matters, new safeguards have been put in place to try and provide better protection because Financial Powers of Attorney, anecdotal evidence suggests they’re the most abused Powers of Attorney. The Government at the time, which is the previous Government, who made this Act, have put in, place some quite stringent protections to try and provide better safeguards against abuse. One of them in relation to individuals who are appointed for financial matters only is they cannot be found guilty of an offense involving dishonesty or if they have they have to have told the principal about it and has to have been recorded in the actual Power of Attorney. For a trustee company, you can actually appoint a company to be your Enduring Attorney. For a trust company such as State Trustees, they cannot have a proceeding for winding up commenced against them.
The Act also provides that you can appoint more than one attorney. There was a lot of evidence to the Parliamentary Committee, from the community that they wanted the option of being able to appoint more than one in particular when they have a lot of children and also to have the option of being able to stipulate how they want those particular attorneys to act. This is very legal language but essentially, you can stipulate that the attorneys act jointly, that means they act together, they have to make decisions together, they have to sign documents together. They can act severally which in other words they act separately. They can act jointly and separately which means they can act together or if one person is not available they can act apart or they can’t act as the majority. For instance if you appoint three attorneys two of the three have to agree. If you don’t stipulate in your Enduring Power of Attorney and you’ve got more than one attorney that you’ve appointed then they’re assumed to be acting jointly that is together.
The new Act also introduces the option of appointing an alternative attorney for each attorney that you appoint. In other words that person can step in the shoes of your attorney, is that attorney is no longer able to act. There was evidence to the Parliamentary Committee about this, for instance if you only appointed one attorney and that attorney gets sick or unfortunately passes away or is no longer available to act then your Enduring Power of Attorney would no longer operate. So if you have the option of appointing and alternative and that attorney is available that means the Ensuring Power of Attorney can still operate in those circumstances.
The Act also introduces new witnessing requirements and these are a lot more stringent than the current Act. Under the Power of Attorney in the current Act, one of the witnesses must be required to be able to witness the Statutory Declaration. Under the new Act, one of the witnesses must be either a medical practitioner or a person authorised to witness affidavits. Again, the evidence to the Parliamentary Committee in relation to witnessing was quite strong in relation to concerns that under the current arrangements in relation to being able to have somebody who is a witness who is authorised to witness stat decs. For instance, it could be a chemist, may not necessarily know the person who is trying to get them to witness them making their Power of Attorney. There was a concern there may be in fact witness shopping around to try and find somebody who can quickly witness your Power of Attorney. It was thought the requirement to have particularly a medical practitioner as one option may actually help in the sense that your local GP may well understand you, know you, know if there is an issue around capacity as well.
Again, this is a safeguard it’s not going to totally protect against abuse but we’re hoping in providing more stringent requirements it will help in that regard. Also in relation to who cannot be a witness you can’t be a relative of either the principal or attorney, you can’t be the principal’s care worker or accommodation provider or the person signing on behalf of the principal. There are provisions in the Act where you can direct somebody to sign on your behalf if you can’t in the circumstances as well.
Again just to mention the overall philosophy of the Act is to try and achieve a balance between increased protections and safe guards against abuse but also to to encourage more people to make Powers of Attorney.When will the new Enduring Powers Operate – they will be able to operate from the 1st of September, so in about 4 weeks. In terms of when you can actually specify in the Power of Attorney when your enduring power can operate, so the new laws start 1st of September, but in terms of making an Enduring Power of Attorney when it can start it’s up to you when you want it to start. You can specify a particular time, circumstance or occasion in which you want it to start. Or if it’s not specified then it will be start immediately upon it being made. Or it will start on you losing your capacity to make decisions in relation to the decisions that have been stipulated in the Powers of Attorney.
The Act also outlines some specific duties of enduring attorneys and these again are new provisions and they’re related to increased safe guards as well. An attorney must act honestly, diligently and in good faith. Exercise skill and care, not use the position for profit. Avoiding when there is a conflict of interest unless the enduring power authorises it. Not disclose confidential information unless the law authorises it and to ensure that you must keep accurate records and accounts of all dealings and transactions.
In relation to an enduring attorney you appoint for financial matters again, this is another safe guard, they will not be able to enter in what we call Conflict Transactions unless again they’ve been authorised by the Principal or the Victorian Civil and Administrative Tribunal. They can be retrospectively authorised by them. A conflict transaction is a transaction in which there is or may be a conflict between the attorney’s duty to the principal and the interest of the attorney or their relative, business associate or close friend.
There are other safe guards in relation to appointing enduring attorneys for financial matters. That attorney must keep their property separate from the principals unless they have jointly owned property or they’ve had jointly owned property or they have acquired property in place of that jointly owned property. Also an enduring attorney may provide from the principals property for the needs of the principals dependants if it’s specified in the Power of the Attorney, but again it must not be more than what’s reasonable in the circumstances unless the Power of Attorney provides otherwise.
Another important safeguard is gifts. Subject to what you put in the Power of Attorney, you can make a gift as an attorney of the principal’s property if it’s reasonable, if it’s to a relative or close friend of the principal, but that can include the attorney and the attorney’s close friends and relatives as well and if it’s for a seasonal nature or special event. It can be a donation of which the principal may have made when they had capacity. Again, if you make a gift of $100.00 or more and it’s to the attorney, the attorney’s close friend or relative or an organisation in which the attorney is connected with you have to keep a record of it. Again, that was another area of relevance where there was a lot of misuse of making gifts the principal’s money in relation to Enduring Powers of Attorney. The Government have put in place new gift provisions, which currently aren’t in the Act, and they’re based on the NSW Act.
Again, there is further and I will just flick through some of these, there are further principles in relation to acting when the principal doesn’t have capacity and that’s focused on looking after the principal’s well-being, considering their wishes and encouraging them to participate as much as possible.
The Act also has more specific revocation and resignation provisions – revoking as I mentioned earlier is cancelling the Power of Attorney or resigning. I won’t go into that because they’re incredibly complex and suffice to say there are different requirements depending on whether you’re revoking or resigning, whether the principal has capacity. Different requirements in relation to what steps you need to take to inform people that you’re resigning or revoking the Enduring Power of Attorney or somebody’s appointment and again there are different forms in relation to that as well.
VCAT has new powers in relation to enduring powers particularly in relation to conflict transactions as I mentioned earlier. They can also declare an enduring power valid or invalid. Interestingly they introduced a new power that they can order compensation for loss relating to an attorney contravening, in other words breaching the Act. That’s a very important new provision.
At the moment you have to go to the Supreme Court to try and seek compensation, which is obviously a very difficult, very costly process. It also introduces new specific offences for abuse of Powers of Attorney. At the moment, in relation to seeking redress, you have to refer to the Crimes Act and the Theft and Fraud Provisions Crime Act. That’s talking to the Victoria Police. It’s very rarely done, very difficult to approve. We have introduced specific offenses and they relate to obtaining or using a Power of Attorney for your financial advantage. There are penalties related to that, penalty units and monetary penalties. There is also imprisonment as well as an option.
What do you do about your existing Enduring Powers of Attorney – well they’re not affected by the new Act however there are some of the provisions in the new Act, which will apply to your Enduring Power of Attorney. For instance, the definitions of capacity, which I have mentioned as well as some of the VCAT powers particularly related to compensation. I won’t go through that in detail, obviously they’re quite complex. Just keep that in mind.
Supportive Attorneys, I know that’s probably what most of you have come here today to listen to information about. Supportive Attorney appointments I suppose one way of looking at them they’re in a way of giving a helping hand.
What is the role of the Supportive Attorney – this is a legislative first for both Victoria and Australia. Supportive Attorneys have been in Canada since about 2000, but it’s quite a new role and it’s going to be interesting to see how it plays out. I should probably mention that we’re waiting to see also how some of these provisions work. Obviously, there will be hiccups if we have issues that arise in terms of the forms and some of the provisions of the Act. We will look at making some amendments to that. We will just have to see, particularly with Supportive Attorneys, it’s such a new area as wellA Supportive Attorney will support the principal to making give effect to the principals own decisions. That’s a really important element here. With Enduring Powers of Attorney, you actually appoint an attorney to be what we call your substitute decision maker. In other words, they make decisions on your behalf. A Supportive Attorney makes what we will call supported decisions, they don’t make a decision on your behalf they help you to make your own decisions. Very important distinction.
They can support you to make decisions related to personal, financial and other matters. They’re not just confined to personal and financial matters. However, they cannot be significant financial transactions. The Act does provide a definition of significant financial transactions, I’ve tried to summarise it here. Again, it’s a little bit tricky. It’s investments generally of more than $10,000 in interest bearing accounts of authorised deposit taking institutions, real estate transactions except tenancy issues, dealing with land, transactions using property as security and buying and selling substantial personal property. We will see how that definition goes.
What can you ask your Supportive Attorney to do if you’re a principal appointing a Supportive Attorney – you can ask them to we call these the Information Communication Powers and the Giving Affect Powers. You can ask them to collect information about you, you can ask them to communicate that information or to assist you to communicate supported decisions and you can also ask them to take any reasonable action or do anything that’s necessary to give effect to supported decisions. So an example of an information power might be you’ve asked your supportive attorney to access your income and banking information to help you to make a financial decision. In relation to the communication power, it might be communicating your health treatment decision to your GP.
What are some of the benefits of Supportive Attorneys – we’re hoping they will allow a person to make clear who they want to support them in decision making, give stages to supportive decisions, provide guidance to the attorney about their role and hopefully provide certainty to third parties such as banks and hospitals. A Supportive Attorney appointment may not be for everybody. A number of these arrangements would happen now but they would be what we call Informal Arrangements. We’re hoping to fill that gap where somebody who has capacity and again this is just an example, maybe have some difficulty in making decisions but still has the capacity to make the appointment, they have the help of somebody, but they may still be able to make the decision. It’s an area that may not necessarily currently fall under the Enduring Powers of Attorney. Again we expect people still may use informal arrangements. We’re hoping the legislation will provide another option to formalise these arrangements and have them recognised.
Who is eligible to appoint a Supportive Attorney again, these are very similar to the enduring power eligibility requirements. You have to be an adult to make a supportive attorney appointment. You have to have decision-making capacity to make that supportive attorney appointment. Again you have to use as a minimum the prescribed forms. Again, they will be also an online form as well which will have some ease of use elements on it.
Again, the Act provides more guidance on what is decision-making capacity in relation to a support attorney appointment. Essentially they’re understanding that it’s about making your own decisions but with support that you in fact can choose a person to help you make those decisions, that importantly they’re you’re decisions. That you understand when in fact the appointment commences and that the appointment and this is an important difference between a supportive attorney appointment and enduring power of attorney, is the appointment only operates while you have decision-making capacity. It is cancelled if at any time you lose capacity in relation to making that appointment.
Who can you appoint as your supportive attorney – these are very similar to your enduring attorneys. You can appoint more than one supportive attorney but what is different is they can only act separately, they have to make decisions on their own. Again, you can appoint one alternative supportive attorney for each supportive attorney. Each supportive attorney, an alternative supportive attorney has to sign a statement of acceptance. That has particular certification requirements in it around the fact they certify they’re eligible to accept that appointment and in the instance of an alternative supportive attorney they are willing to take the place of the supportive attorney if the circumstances the supportive attorney is not willing or able to act in that role.
The witness requirements are less restrictive than enduring powers. You have to have two witnesses but one of them can be somebody who is authorised to witness stat decs and that can be a chemist like the example I used earlier. They are similar on who they can and can’t be. One can be a relative, a care worker or accommodation provider.
When does a Supportive Attorney appointment commence – it’s very similar to Enduring Powers but as I mentioned earlier the appointment has no affect if the principal loses capacity.
What are the duties of a Supportive Attorney – again very similar to Enduring Attorneys however the last dot point there is different in relation to a supportive attorney must discuss anything about a supported decision with the principal in a way that the principal can understand and that will assist the principal to make a decision. A Supportive Attorney cannot assist the principal to conduct illegal activities, or coheres intimidate or unduly influence the principal.
Again you can revoke, cancel a supportive attorney appointment. I won’t go through the issue here. They’re very similar to enduring attorneys and the same with resignation requirements as well.
VCAT has powers in relation to supportive attorney appointments. If you have an issue in relation to a supportive attorney appointment, you can make an application to VCAT to have them resolved. VCAT can make quite ranging orders. They can include to cancel, vary or suspend the appointment or in fact it’s actually any other order as the Act says. That can relate to whether in fact they consider the principal has capacity, the effect on an appointment of the party to the appointment not complying with the Act. That includes supportive attorney not complying with the appointment or exercising unduly influence over the principal. Again there are offences under the Act and they’re the same for Enduring Powers but they only apply to individuals because you can only appoint an individual to be your supportive attorney.
Where do you go for further information – you can come to us or you can particularly go to the Office of Public Advocate. Many of you might be aware they’ve got an advice line that takes thousands of calls at the moment in relation to Enduring Powers of Attorney and they’re expecting a lot of calls in particular around Supportive Attorneys. They’re as I mentioned introducing the Take Control Kit, some Supportive Guides and fact sheets. We also have some summaries on our website and as Lucinda mentioned we will also have prescribed forms and we’re working with OPA on the prescribed forms and the online forms as well.
If anyone has any questions for either of us please feel free to put your hand up.
In this moment of technology, I’ll just add in an omission I should’ve let you know. I’m particularly conscious we’ve got other colleagues in the room, the way we have divided our activities in this field between the Department of Justice and Regulation and OPA is in recognition of OPA’s consistent role as the resource provider, the central resource provider to the community on Powers of Attorney and Powers of Attorney related media. We decided with other colleagues that OPA would focus on developing resources to reflect the new legislation and the plan is they will be available on OPA’s website on the 1st of September. Hopefully all going well, there will be a magical transfer between existing legislation on the night of the 31st August to the next set of the legislation on the 1st of September.
OPA will continuously be the source of information about an existing legal regime regarding Powers of Attorney. We as the policy section of the department that drafted the legislation are providing information about the forthcoming changes. Kerry’s and my role on this will largely wrap up after the legislation is introduced. If you’re looking for information about it, we probably have more detailed information about the forthcoming legislation on our website at the moment simply because we didn’t want to confuse people about what was available to them today. We didn’t want to confuse them by altering the materials on OPA’s website. I hope that makes the distinction clear.
We’re running a little late, I don’t know who has questions. Amy, can you give me an indication on how many people?
Not a question just a clarification thing – real important to note you can’t use the old forms after 1st of September, has to be the new prescribed forms.
Are you talking about the current Power of Attorney or a new one?
It is a little tricky in relation to the old and new powers. If you want to make a new Power of Attorney, supportive power arrangement 1st September have to use new forms. If you’re looking at revoking in other words cancelling a current arrangement and this is where it’s going to get tricky and we are going to put something in one of the publications to try and explain this situation. If you have an Enduring Power of Guardianship, which has been made under the Guardianship Registration Act which is a current arrangement, if you want to cancel that, at the moment you need to use the particular form of revocation, which is in the Act and you will still need to use that after the 1st of September.
In relation to an Enduring Power of Attorney for financial matters, at the moment and this is where the new Act is different, at the moment you can actually verbally revoke it which is a bit of a concern. But there is also a form that the Department has made which is on the department’s website at the moment.
If you want to revoke an Enduring Power of Attorney, financial matters that’s a current arrangement in theory, you can revoke that verbally or you can use the current form. There will also be an option in the new forms that will ask about whether in fact you want to, at the moment anyway, I shouldn’t say there will be, there is likely to be as it’s still yet to be approved. There is likely to be a question there that will ask you whether you want to revoke any other powers of attorney. Given the current provisions around revoking Enduring Power of Attorneys financial, you can revoke them verbally, you don’t need to use a prescribed form. That’s the difference between that and an Enduring Power of Guardianship. You could put a line in the new Power of attorney saying I revoke my previous Enduring Power of Attorney for financial matters. We are going to explain that because it’s very tricky and we have spent a lot of time in the last few weeks developing the forms, dealing with some of these issues as they’ve been rising. We’ve been working through them and that’s one of the issues that OPA have been very concerned about as well.
Thanks so much Lucinda and Kerry.
While we’re changing panels, I will do a little bit of a spruiking. Thank you very much and I feel really horrible saying can you let yourself out. Thank you, we really appreciate that. It’s a lot of information to digest and we’re hoping it will be a smooth transition on September 1st.
- Date published:
- Mon 14th Sep, 2015