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General Power of Attorney This document enables the Attorney to sign any document that you may legally authorise an Attorney to sign. There are some documents that an Attorney cannot sign as the law does not permit the delegation of those tasks, e.g. a Will, a position held in some official capacity such as a Company Director or the office bearer of an organisation. A General Power of Attorney ceases to be of effect if the person making the Power of Attorney is no longer legally capable. This document is identical to a General Power of Attorney but continues to be of effect even if the maker becomes incapable of making decisions. This is the most popular form of Power of Attorney. If you have lost the ability to make decisions on your own behalf, then your Attorney has an important job and you should choose very carefully. New legislation relating to this area commenced on 1 April 2004. It is now possible to limit your Attorney’s powers. Most significantly, you can also indicate when the document is to occur. This may be immediately, or on a specified date or a specific occasion. Two witnesses are required when this document is signed, and one of the those persons must be a person who is authorised by law to witness Statutory Declarations in Victoria. A Solicitor is an authorised witness. Appointment of Enduring Guardian
The legislation in relation to this document only commenced on 1 January 2000. The other types of Powers of Attorney (apart from the Medical Treatment document) relate to financial issues. The concept of "Guardianship" relates to issues concerning the residence of a person and general health issues. The best way to describe Guardianship is that it relates to the same powers and issues that a parent may have in relation to their infant child including:
You may decide to give the Guardian all of the above powers or only power in relation to one or some of those items. This document can be very useful, particularly if you are concerned about whether or not you may reside in a nursing home or hostel in the future. Limited or Specific Power of Attorney
You may delegate to an Attorney the ability to act for a specific period of time (e.g. for 3 months while you are overseas) or to act only in relation to a particular transaction (e.g. the sale of shares or a house because you will be overseas). This type of document can be very useful if you do not wish to give a broad delegation of powers to an Attorney. Medical Treatment Power of Attorney
This enables your Attorney to make decisions in relation to your medical treatment should you be unable to give directions to your Doctor. Some people have very strong views about the medical treatment that they prefer or would not prefer to occur. Your Attorney in these circumstances cannot make a decision which would prevent sustenance or pain relief being given to you. If one of your views is to refuse life saving medical treatment or for a life support machine to be turned off, then you are placing a very important burden upon your Attorney. You should discuss such issues very carefully with your Attorney before you make this document. Picking the right person or persons to act as your Attorney is extremely important. You may decide to have:
In 1996 there was extensive media coverage in relation to a situation where a Power of Attorney had been made by a young gentleman who had become a paraplegic as a result of an accident. He received approximately $300,000.00 in compensation and appointed his mother to be his Attorney. Without the son's knowledge, the mother withdrew over a 12 month period the entire savings of $300,000.00 and unfortunately lost all of that money on poker machines. While the son had a legal entitlement to sue his mother for the return of the money, that entitlement was not helpful as his mother had no money left. The son had no claim against the bank as they were only complying with the Power of Attorney. The bank had no obligation to enquire as to the purpose for the withdrawal of funds and whether or not the son approved of such withdrawal. Most people would have thought that the appointment of your mother as Attorney would have been a safe choice. It is extremely important to consider the choice of Attorney very carefully. If there are any doubts, then perhaps that person should not be appointed or the appointment should be made on the basis that both Attorneys should sign at the same time in relation to any dealing on your behalf. Victorian Civil And Administrative Tribunal (VCAT)
VCAT has the overriding power to revoke any Power of Attorney and to appoint a Guardian or Administrator who will then be responsible to report to the Tribunal about the affairs of any represented person. If no Power of Attorney has been made and a person subsequently becomes incapable of making decisions for themselves, then an application can be made to VCAT for a relative or friend to be appointed as Administrator and/or Guardian. Additional reporting responsibilities are imposed upon the Administrator/Guardian, but these are not necessarily onerous. However, most Attorneys find it far more convenient not to have to provide annual reports to VCAT. O'Farrell Robertson McMahon can provide expert advice about the operation of VCAT.
Obtaining expert legal advice is very important. You should be very careful about buying a blank form from a newsagents. The cost of having a power of attorney prepared can be as little as $70. In addition a 25% discount is available to the holders of seniors cards or health care benefit card.
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