Planning for the Future – Appointing Attorneys and Decision Makers
Most people are familiar with making a will to ensure their assets pass to their chosen beneficiaries after death.
However, far fewer take the equally important step of preparing enduring powers of attorney to appoint someone they trust to make decisions if they are unable to do so themselves.
Loss of decision-making capacity can occur through illness, injury, dementia, or even being overseas when urgent decisions are required. By putting the right documents in place, you ensure your affairs are handled by people you choose, rather than leaving those decisions to a government tribunal.
In Victoria, the three most common legal documents for substitute decision-making are:
Enduring power of attorney (for financial and personal matters);
Appointment of medical treatment decision maker; and
Nomination of restrictive practices decision maker.
Enduring power of attorney
This allows you to appoint one or more attorneys to manage financial and personal matters.
Financial matters include accessing bank accounts, paying bills, and selling property.
Personal matters cover lifestyle choices such as where you live and with whom.
You decide when their authority begins and can set limits, instructions or conditions. Multiple attorneys can act jointly, separately, or by majority. Attorneys must act in your best interests, avoid conflicts, keep accurate records, and keep your money separate from their own.
Appointment of a medical treatment decision maker
You may appoint someone (and a substitute) to make medical decisions if you lose capacity. These include surgery, prescriptions, dental treatment, and palliative care. Your decision maker can also consent to, or refuse, life support. They must base their choices on what they reasonably believe you would have decided yourself.
Nomination of a restrictive practices decision maker
A new Victorian law allows you to nominate one person to decide about restrictive practices in residential aged care. These practices – such as bed rails, restraining chairs, locked doors, sedation, or seclusion – limit freedom of movement and must be carefully overseen. If no one is nominated, a temporary decision maker may be appointed. If a temporary appointment is needed, the law sets a priority order: spouse or partner; primary carer; child in order of age; parent in order of age; then sibling in order of age. They must have a close and continuing relationship with you and be reasonably available.
What happens without powers of attorney?
If you do not have an enduring power of attorney, no one, not even family, has an automatic right to make decisions for you. Instead, someone must apply to the Victorian Civil and Administrative Tribunal (VCAT) to be appointed as your administrator (for financial matters) or guardian (for personal matters).
This process can be stressful, costly, and time-consuming, and may result in someone you would not have chosen being appointed. In some cases, VCAT appoints the public trustee or another professional trustee rather than a family member.
Take action now
Appointing attorneys and decision makers ensures your wishes are respected and your affairs are properly managed. Harwood Andrews can guide you through the process and help protect your future.
For advice, contact our Wills & Estates team on 03 5225 5250 or email wills@ha.legal
