The document nobody thinks about until it is too late

Three appointments, not one

In Victoria the work is split across separate documents, and most people need at least two of them.

Medical treatment sits in its own appointment under separate legislation. A financial attorney has no authority to consent to treatment, which families discover at exactly the wrong moment.

• An enduring power of attorney for financial matters: banking, bills, property, tax
• An enduring power of attorney for personal matters: where you live, who cares for you
• An appointment of medical treatment decision maker, for consent to treatment
• An advance care directive, if you want your own instructions or values recorded

Why it cannot be made after the fact

Signing requires decision-making capacity. You have to understand what you are handing over and be able to say so. Capacity is assessed at the moment of signing, and it is not all or nothing: someone in the early stages of dementia can often still sign, and someone in acute delirium cannot, even if it passes in a week.

Once capacity is gone the document is no longer available to you. What remains is an application to VCAT to appoint an administrator for financial decisions or a guardian for personal ones. That is a hearing, with medical evidence, usually months after the point it was needed, and the tribunal appoints whoever it considers appropriate. Sometimes that is a family member. Sometimes it is a public official nobody has met, because the family could not agree.

When it starts working

A financial appointment can begin whenever you say: straight away, on a date, on an event, or only if you lose capacity. If the document is silent it begins on incapacity. Personal matters are different. That appointment only ever comes into effect once you cannot make the decision yourself.

Starting it immediately is not a loss of control. You keep making your own decisions for as long as you are able, and you can revoke the appointment at any time while you have capacity. What it buys is somebody who can pay the rates while you are in hospital for a month.

What your attorney can and cannot do

An attorney must act honestly, diligently and in good faith, keep your money separate from their own, keep records, and give effect to your wishes so far as that is practicable. They must not use the position to benefit themselves.

Choose someone who keeps receipts and answers the phone. Most of the role is bookkeeping done for a person who cannot check it, which is exactly why the records matter.

• They cannot make or change your will
• They cannot vote for you, or consent to your marriage
• They cannot give gifts beyond what is reasonable and customary
• They need express authorisation for any transaction they benefit from

How it has to be signed

The form is prescribed, and the witnessing is where homemade versions fail. Two adult witnesses must watch you sign, both present at the same time. One of them has to be authorised to witness statutory declarations or be a registered medical practitioner. Neither can be your attorney, a relative of yours or of your attorney, or a person who cares for you.

Your attorney then signs a statement of acceptance, and the appointment has no effect until they do. Once it is signed, give a certified copy to your bank early. Banks tend to ask for it at the point you are no longer able to arrange one.

Before you act on any of this

This is general information about the law in Victoria, not advice about your circumstances or anybody else’s capacity. If someone in your family has already begun to lose capacity, the options narrow quickly and the sooner you ask the better.

Call us on (03) 9000 1200. Fifteen minutes on the phone, free. We witness every signature ourselves, at our office, at your kitchen table, in hospital, or in an aged-care lounge room.