Enduring power of attorney checklist - VIC

Think about each point before you start to complete your Enduring Power of Attorney form and make notes of your preferences, questions and decisions.

Tick the boxes once you’ve completed each step.

Please be aware this checklist is not a substitute for legal advice.

1. Get ready

Knowing as much as possible about an Enduring Power of Attorney (EPOA) before you start to make one will make the process easier.

• Compass – Introduction to enduring power of attorney

• Compass – Powers of attorney in Victoria

• Office of the Public Advocate – Making an enduring power of attorney

• Office of the Public Advocate, ‘Your voice—trust your choice’ booklet

• State Trustees – Learn more about powers of attorney

If you’re unsure about any of these, visit the Compass ‘Helpful terms to know’ or the Office of the Public Advocate website.

• Principal (you, the person making the power of attorney)

• Attorney (the person you appoint under a power of attorney to make decisions for you)

• Alternative attorney (someone you appoint to act only if your appointed attorney is unable or unwilling to act when needed)

• Capacity (your ability to understand facts about your decisions, weigh up the consequences—i.e. the risks and benefits—of making decisions, and communicate consistent choices)

• Lose capacity (you become unable to make your own decisions)

• General non-enduring power of attorney (a legal document that authorises an attorney to make financial decisions on your behalf while you still have capacity)

• Enduring power of attorney (a legal document that authorises an attorney to make financial and/or property decisions on your behalf if you lose capacity)

• Supportive attorney (an attorney you authorise to help you make decisions, but not make them for you, while you still have capacity)

• Jointly (2 or more attorneys must all make decisions together)

• Jointly and severally (2 or more attorneys can make decisions either on their own or together)

• Majority (most of the appointed attorneys must agree on the decision)

• Revoke (cancel)

• Compass – Powers of attorney in Victoria

• Office of the Public Advocate – Your rights

• State Trustees – Types of power of attorney

• If so, an EPOA is the right option for your needs.

• If you want your legal and financial decisions to be looked after while you still have capacity (for example, if you are in hospital or travelling overseas), you should make a GPOA. Forms and information are available from the Office of the Public Advocate’s website.

• If you’d like to appoint someone to help you make your own decisions while you still have capacity, you should make a supporting attorney document. The supportive attorney forms and information are available from the Office of the Public Advocate’s

  website.

• You will need to appoint a medical treatment decision maker, who will be authorised to make medical decisions for you if you cannot do so.

• You can also make an advance care directive, which is a record of the health care treatments you’d like to have, or refuse to have, if you become unable to make the decisions yourself.

• Find out more about these future planning options on the Office of the Public Advocate’s ’Your rights’ webpage.

If you’ve ticked all those boxes, you should feel confident you have all the information you need.

Move on to the next list.

1. You are over 18 and

2. you understand the effect of making a power of attorney and

3. you currently have capacity to make your own legal and financial decisions.

There is a lot of support and assistance available to people who are making their EPOAs. The next list will help ensure that you know who you can contact for advice and help.

• If you don’t currently have a solicitor, you can find one via the Find Your Lawyer Referral Service on the Law Institute Victoria website.

• Seniors Rights Victoria – an advocacy service for seniors.

• State Trustees.

Now you should be ready to start making your EPOA.

2. Get started

The best way to make your EPOA is to complete one of the official forms that are available. You can download a form from the Office of the Public Advocate website.

• If you want to appoint an attorney and up to 2 alternative attorneys, use the EPOA short form.

• If you want to appoint 2, 3 or 4 attorneys and up to 3 alternative attorneys for each of them, use the EPOA long form.

Before you start filling in the form, read through it and the information attached to it. The form includes explanations and tips to help you complete it, but you may still think of questions you want answered. Write down any questions you have if they’re not answered in the form.

• Compass – 'Powers of attorney’ webpage

• You Decide Who Decides, a booklet compiled by the Australian Guardianship and Administration Council.

• Office of the Public Advocate’s ‘Take control’ booklet.

• Office of the Public Advocate’s advice service—phone 1300 309 337

• State Trustees

• Seniors Rights Victoria

• your solicitor

• your accountant

• trusted family members

• close friends whom you trust.

You’ll need to decide who you’d like to be your attorney(s). Remember that in Victoria you can appoint up to 4 people to act as your attorney, and you can also nominate alternative attorneys for each of them in case one resigns. To appoint someone as an attorney or alternative attorney, you must get their written acceptance of the role in the EPOA form.

• Family members (it doesn’t have to be your closest relative, if you don’t believe they are suitable)

• Close friends

• Neighbours

• Your partner (however, you should consider their own age and decision-making capacity; read more about partners as attorneys here

• Your solicitor or accountant

• State Trustees (for financial matters only)

• An independent trustee company (for financial matters only)

• They are over 18 years old.

• They are not bankrupt.

• You trust them.

• They are not your care worker, health provider or accommodation provider.

• Read the Compass webpage, 'Being an attorney’

• You Decide Who Decides booklet, section 1 ‘Choose someone you trust', pages 15–20

• If the person you’ve chosen doesn’t agree, consider someone else and talk to them about it.

• If they do agree, they will need to sign your completed EPOA form in section 7.

• jointly (all attorneys must make decisions together and all sign any document)

• jointly and severally (they can make decisions together or independently, so that either all attorneys sign a document together or one can sign a document alone)

• severally (any one attorney can make decisions independently of the others and sign a document alone)

• by majority (more than half of the attorneys need to agree on a decision and sign a document)?

• Remember, you will already have lost capacity for your EPOA to be in effect, so if your attorney resigns, you won’t be able to appoint a replacement or alternative attorney then. You need to decide it now.

• If you have chosen one attorney, you may appoint up to 2 alternative attorneys.

• If you have chosen 2 to 4 attorneys, you may appoint up to 3 alternative attorneys for each of them.

• If you decide to nominate alternative attorneys, you’ll provide the details in the EPOA form and state whether they may act jointly, jointly and severally, or by majority.

Next, decide on the details of your EPOA and how you would like it to work for you.

• Once you’ve made the EPOA?

• When you’ve lost your decision-making capacity?

• In particular circumstances or on certain occasions?

• Note: if you don’t complete this section of the form, your attorney(s) will be authorised to start making decisions as soon as the form has been completed, signed and witnessed.

• Are they to handle personal matters only: for example, where you live, who you see, what care services you receive?

• Are they to handle financial matters only: for example, paying bills, transacting real estate, managing investments, carrying on a business?

• Would you like certain attorneys to manage personal matters and others, financial matters?

• Are there any other specific matters you’d like an attorney to manage?

• Should your attorney notify someone (e.g. your lawyer, your bank) that the EPOA is taking effect before they make any of your decisions?

• Do you authorise for your attorney in a financial EPOA to give gifts from your finances?

• Can your financial attorney use your money to meet the needs of your dependants, such as paying for rent, food, education or medical care?

• Have you thought about requiring your attorneys to submit your accounts to your accountant every year?

• Are there any specific instructions about personal matters that you’d like to record?

• The short EPOA form is for appointing one attorney and up to 2 alternative attorneys for that attorney. So, you will need to have ready the details of up to 3 people if you are completing the short form.

• The long EPOA form is for appointing from one to 4 attorneys and up to 3 alternative attorneys for each appointed attorney. So, you will need to have ready the details of between 4 and 12 people if you are completing the long form.

Once you have thought through all your preferences and found answers to your questions, you should be ready to fill in the EPOA form.

3. Complete the form

Both long and short EPOA forms are in PDF format. You can complete your form on a computer if you have a PDF-editing program, such as Adobe Acrobat Reader (a free program—download from the Adobe website but you’ll need to print the completed form when you are ready to sign it. Alternatively, you can print the blank form to fill it in by hand with a pen.

If you are completing the form on paper, you might like to think about printing 2 copies: one as a draft that you can change and make mistakes on, the other to become the final, unaltered copy.

• The short EPOA form is for appointing one attorney and up to 2 alternative attorneys for that attorney.

• The long EPOA form is for appointing from one to 4 attorneys and up to 3 alternative attorneys for each appointed attorney.

• Fill in your full name and home address in the boxes.

• If you already have an EPOA and want all or part of it to continue alongside this new EPOA, write in the next box the details of what is to continue. Otherwise, rule a line through this box and leave it empty.

• If you’re using the short form, record the name and address of your chosen attorney in the first 2 boxes.

• Then indicate what you authorise this attorney to do by ticking the corresponding check box. If you want them to handle any kind of decisions for you, tick only the first check box. If you want to be more specific, tick whichever of the next three check boxes apply.

• If you tick ‘the following specified matters’, write the details in the large box at the bottom of the page.

• If you’re using the long form, record the name and address of your first chosen attorney in the first 2 boxes.

• Then indicate what you authorise this attorney to do by ticking the corresponding check box.

• If you want them to handle any kind of decisions for you, tick only the first check box. If you want to be more specific, tick whichever of the next three check boxes apply.

• Tick the appropriate check box to indicate whether you do or don’t want to appoint alternative attorneys for this attorney. If you tick ‘no’, you can then turn to page 4.

• If you tick ‘yes’, write the name and address of each alternative attorney in a set of boxes.

• If you are nominating only one alternative attorney, tick ‘no’ in response to the next question and move to the next column.

• If you are nominating more than one alternative attorney, tick ‘yes’ in response to the next question and provide details for the next alternative attorney in the 2 boxes. Repeat this for each alternative attorney.

• Indicate when your alternative attorneys can start to act for you.

• On page 4 of the long form, you can indicate whether you want to appoint a second attorney. If you do, complete pages 4 and 5 in the same way as pages 2 and 3.

• If you also want to appoint a 3rd and/or 4th attorney, turn to page 18 of the long form and complete both pages of section A2, ‘Appointment of attorneys’ in the same way.

• Then return to page 5 and the end of section 2.

• In the short form, section 3 is about your alternative attorneys.

• Only complete section 3 if you have appointed 2 alternative attorneys. Otherwise, rule a line across this page.

• If you have appointed 2 alternative attorneys in the short form, indicate in the large box whether your alternative attorneys are to act jointly or may act jointly and severally.

• If you want them to act differently for personal matters to financial matters, write the details of your preferences in the large box.

• In the long form, section 3 is about all of your attorneys and how you want them to act.

• Only complete section 3 if you have appointed more than one attorney. Otherwise, rule lines across these pages.

• Note: if you have appointed more than one attorney and you don’t complete section 3 in the long form, your attorneys will have to act jointly (together).

• Indicate whether you want your attorneys to act jointly, severally, jointly and severally, or by majority by ticking only one checkbox. (Each option has a brief explanation to remind you what it will mean.)

• If you want different attorneys to look after different matters, write the details in the large box.

• On page 7, write in the large box how you want your alternative attorneys to act in place of the attorneys. State whether you want them to act jointly, severally, jointly and severally, or by majority, and any instructions for how you want them to act in different matters.

• Note: if you do not complete section 4, your attorneys will be able to start making decisions as soon as your form has been completed, signed and witnessed. So if you want to continue making your decisions yourself for now, you should complete section 4.

• You need to complete only one of the 2 columns on this page—either the left column or the right column.

• If you want your attorney(s) to start making decisions at the same time for everything, use the left column and tick the first check box at the top of the column. Then tick only one of the next three check boxes. If you tick ‘From the time, in the circumstance or on the occasion’, write in the large box the specific details of this preference. Rule a line through the right column.

• If you want your attorney(s) to start making decisions at different times for different matters, use the right column and tick the first check box at the top of the column. Then tick as many of the following three check boxes as you want and write the specific details of your choice in the blank boxes under each checkbox.

• Complete this section only if you want to place any conditions on the actions of your attorneys or record any specific instructions about particular matters.

• You do not have to complete this section. It is optional.

• The first 4 boxes are for particular categories of conditions or instructions. If you want to set any conditions or instructions relating to these categories, write the details in the appropriate box.

• The last box is for writing details of any other conditions or instructions that you might want to make.

• Cross out any boxes you do not wish to use, or rules lines across both pages if you do not want to make any specific conditions or instructions.

4. Sign and witness

You must sign your EPOA in front of 2 witnesses. The witnesses must be aged 18 years or older and cannot be:

• your relative

• your attorney or alternative attorney, or a relative of your attorney or alternative attorney

• your care worker or accommodation provider.

One witness must be an ‘authorised witness’, which means someone who is either authorised to witness affidavits in Victoria or a registered medical practitioner. Fees may apply for the service.

• To find an authorised witness, visit the Department of Justice and Community Safety’s ‘Affidavits’

  webpage.

In Victoria, you may choose to have your EPOA signed and witnessed remotely instead of in person. This means everyone can sign electronically and they do not have to get together physically. In-person signing is usually the best option, but remote witnessing can be useful for people who live in rural, regional or remote areas, have mobility issues, or would find it difficult to meet up with others outside their home.

• The remote witnesses must be in Victoria.

• One of the remote witnesses of an EPOA must be a ‘special witness’, which means an Australian legal practitioner or a justice of the peace, and they must follow particular steps when witnessing your EPOA.

• The remote witnesses must make sure that you are making the document voluntarily and not under coercion.

• For details and requirements for remote witnessing, visit the Victorian Department of Justice and Community Safety website.

• The witnesses should explain the effect of the EPOA to you and be satisfied that you understand their explanation before they certify your signature in section 6.

• Do not sign your EPOA alone or in the presence of only one witness. Both witnesses must see you sign and date your EPOA in section 6.

• Turn to section 6, ‘Principal’s signature’.

• Write your name under ‘Name of principal’, then sign and date your EPOA.

• Your authorised witness should complete their details in the top of the right-hand column and sign and date the EPOA.

• The other witness can then complete their details in the bottom of the right-hand column and sign and date the EPOA.

• Do not use section 6. Instead, turn to section A1, ‘Signed at the direction of the principal’.

• Do not have your EPOA signed alone or in the presence of only one witness. Both witnesses must see your EPOA be signed and dated for you in section A1.

• Have the person who’s signing for you write your name under ‘Name of principal’, then their own name and address in the spaces below that.

• They then sign and date the EPOA in front of you and the 2 witnesses.

• Your authorised witness should use the top part of the right-hand column to provide their name and address details and sign and date the EPOA.

• The other witness should then use the bottom part of the right-hand column to provide their name and address details and sign and date the EPOA.

• Your attorney(s) must sign their acceptance of the appointment in front of one witness. The witness provides their name, address, signature and the date on the same page, in the spaces below the attorney’s signature.

• The long form has spaces for 2 attorneys to sign their acceptance in section 7. If you have more than 2 attorneys, turn to page 22 and section A3, ‘Acceptance by attorneys’ for more spaces.

• Your alternative attorney(s) must sign their acceptance of the appointment in front of one witness. The witness provides their name, address, signature and the date on the same page as the attorney, in the spaces below the attorney’s signature.

• The long form has spaces for 2 alternative attorneys to sign their acceptance in section 8. If you have more than 2 attorneys, turn to page 24 and section A4, ‘Acceptance by alternative attorneys’ for more spaces.

Your EPOA form is complete! There are a few more steps to finalise it.

Once your EPOA has been correctly witnessed, the last step is to decide where to keep it.

5. Register and store

• Visit the Department of Justice and Community Safety ‘Certified copies of original documents’ webpage for up-to-date information on how to do this and who is authorised to certify documents.

• Get an extra copy if you decide to store your EPOA with the State Trustees, because you will need to deposit the original document and keep one of the certified copies for yourself.

• If you want to store the original EPOA yourself, keep it in a safe place at home—perhaps with your will and other important papers.

• If you decide to store your EPOA with State Trustees, follow their instructions for how to do this.

• Give certified copies to all your attorneys and alternative attorneys.

• Give certified copies to any other relevant people, such as your solicitor, bank, care provider, accountant, family members and trusted close friends.

• You might like to keep a copy of this checklist with the certified copies of your EPOA.

And finally …

• Circumstances and relationships change, so it’s wise to review your plans regularly and make adjustments if needed.

Sometimes things change, and you may decide later that you want to appoint a different attorney, alter the preferences that you recorded in your EPOA, or revoke (cancel) your EPOA completely.

6. Changing or revoking

In Victoria, you may change or revoke (cancel) your EPOA at any time as long as you still have capacity.

• Has your attorney become bankrupt, lost mental capacity, died or changed their mind about being your attorney? (These events would mean they could not continue as your attorney.)

• Has your good relationship with your attorney changed, or do you now have doubts that the person you nominated will act in your best interests?

• Will someone else now be better to handle your financial decisions for you?

• Have your financial circumstances or living arrangements changed?

• How do you now want your future decisions to be made if you should lose capacity?

• Compass – ‘Powers of attorney in Victoria: can I change or cancel my power of attorney?

• State Trustees 'Can I revoke a Power of Attorney?' under FAQs

Now you should be prepared to make the changes that you want.

To revoke an existing EPOA, you must still have decision-making capacity and you must make the revocation in writing.

• Download the revocation form

• Complete the form. You’ll need to know the date you made your previous EPOA.

• Sign the completed form in front of 2 witnesses (one an authorised witness), just like you did with your EPOA.

• If you are unable to sign the form yourself, you can have someone sign for you in section A1, just like you did with your EPOA.

• Provide them with copies of the revocation.

• Make a note of how and when you tell them.

• Ask to have their copies of the previous EPOA back.

To change an existing EPOA in Victoria, you have two options. For either one, you must still have decision-making capacity.

1. You can write a whole new EPOA on a new form, following the steps in this checklist again and changing whatever instructions and appointments you like. The new EPOA will automatically revoke the previous one.

2. Or, if you only want to record additional instructions but not change anything else in your existing EPOA, you may make an additional EPOA and specify in section 1, ‘Principal (You)’, that you are not revoking the existing one. Both EPOAs would then exist concurrently, and both must be followed by your attorneys if they need to begin acting for you. (Be aware that this option could be confusing and lead to complications in making your decisions later.)

However, although you are legally allowed to have two concurrent EPOAs, it’s not recommended, and very few people take this option.

Having two co-existing EPOAs could cause a lot of confusion and complications for everyone involved in supporting you. They would need to find and check two separate and different copies of your instructions, and it would be very easy for misunderstandings to arise and your EPOAs to be misused.

The simplest and safest way to safeguard the integrity of your instructions is to write a completely new EPOA that will supersede the original one.

• If you do want to make an additional EPOA without changing your existing instructions, you must specify in section 1, ‘Principal (You)’ that you are not revoking the existing EPOA. (This is not a recommended option.)

• If you do not specify this on in section 1, the new EPOA will automatically revoke the existing one completely.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.