Inquiry into Powers of Attorney
Submissions
Have your say
The closing date for submissions was 21 August 2009. If you are interested in making a late submission to the Inquiry then please contact the Committee secretariat on 03 8682 2851 or at vplrc@parliament.vic.gov.au
What are powers of attorney?
Powers of attorney are legal documents that help people plan for future financial, health and lifestyle needs. They allow a person (who the law calls a ‘donor’) to choose someone (called an ‘attorney’) to make decisions on his or her behalf. They are a useful way to plan for future care if a person becomes unable to make decisions for him or herself, for example because of an accident or illness.
Under current Victorian law, there are different types of powers of attorney for different situations and different types of decisions:
- Financial – There are two types of documents that allow an attorney to make financial and some legal decisions.
- general powers of attorney are used where the donor is still capable of making decisions but wants someone else to, for example, when the donor is on holiday and needs someone to take care of their banking. These documents usually operate for a limited time. The attorney’s powers stop automatically if the donor loses the ability (or ‘capacity’) to make these decisions him or herself.
- enduring powers of attorney (financial) also allow the attorney to make financial and some legal decisions such as banking or selling property. The attorney’s powers may start, or continue, after the donor loses capacity to make these decisions him or herself.
- Guardianship – An enduring power of guardianship allows the attorney to make a range of decisions for the donor, including lifestyle and some healthcare decisions. The attorney’s power starts when the donor loses capacity to make these decisions him or herself.
- Medical – An enduring power of attorney (medical) allows the attorney to make certain decisions about the donor’s medical treatment. The attorney’s power starts when the donor loses capacity to make these decisions him or herself. The Committee has not been asked to look at powers of attorney for medical treatment.
What issues is the Committee looking at?
The Committee is considering ways to streamline and simplify powers of attorney documents so that more Victorians can plan for their future financial, lifestyle and healthcare needs.
The terms of reference for the Inquiry ask the Committee to consider some specific issues:
- Each of the current types of powers of attorney in Victoria is called something different, is made in a different way and gives different powers to the attorney. For example, someone who wants to plan for future financial, health and lifestyle decisions might have to make several different documents. Should powers of attorney be streamlined? If so, how?
- A power of attorney is only valid if the donor has ‘capacity’ at the time the document is created. This means the donor must understand the document he or she is creating and the effects it will have. How should we determine that a donor has capacity at the time he or she creates a power of attorney? What evidence should we require to show that a donor has capacity? For example, should a doctor need to sign a statement that a donor has capacity?
- Some powers of attorney come into effect only when a donor loses capacity (that is, the ability to make decisions themselves). How should we determine when a donor loses capacity? What evidence should we require to show that a donor has lost capacity? For example, should a doctor need to sign a statement that a donor no longer has capacity?
- Sometimes it is not clear what powers an attorney has. What powers should an attorney have? What limits should there be on attorneys’ powers? How should we educate attorneys about what they can and can’t do?
- There are reports that powers of attorney are sometimes abused. For example, there are some stories about donors being pressured to grant powers of attorney and attorneys misusing their powers. How big is this problem? How can we make sure that powers of attorney are not abused? For example, should these documents be registered?
Have your say
You can comment on any matter relevant to the Committee’s terms of reference in your submission. We are interested in hearing about your personal experiences with power of attorney documents, any issues you have come across and any suggestions for how the law could be improved.
The closing date for submissions was 21 August 2009. If you are interested in making a late submission, please contact the Committee Secretariat on 03 8682 2851 or vplrc@parliament.vic.gov.au.
Submissions can be sent to:
Executive Officer
Victorian Parliament Law Reform Committee
Parliament House
Spring Street
EAST MELBOURNE VIC 3002
or vplrc@parliament.vic.gov.au
All submissions will be treated as public documents and will be placed on the Committee’s website. If you would like to request that the Committee not publish your name or your submission, please state this in your submission.
Submissions received
| Name of individual or organisation | Date received | ||
|---|---|---|---|
| POA/1 | Ms Kate Varty | 18 June 2009 | PDF (47Kb) |
| POA/2 | Mr Ronald T. Jones JP | 29 June 2009 | PDF (178Kb) |
| POA/3 | Mr Robert C. Bolch JP | 07 July 2009 | PDF (560Kb) |
| POA/4 | Mr Glen Cooper | 13 July 2009 | PDF (81Kb) |
| POA/5 | Ms Audrey Cooke | 16 July 2009 | PDF (94Kb) |
| POA/6 | Ms Shirley Glover | 16 July 2009 | PDF (37Kb) |
| POA/7 | Professor Phillip Hamilton | 20 July 2009 | PDF (234Kb) |
| POA/8 | The Royal Women's Hospital | 27 July 2009 | PDF (81Kb) |
| POA/9 | Office of the Public Advocate | 04 August 2009 | PDF (1.76Mb) |
| POA/10 | Combined Pensioners & Superannuants Association of Victoria Inc. | 06 August 2009 | PDF (52Kb) |
| POA/11 | Ms Alex Pottage | 07 August 2009 | PDF (237Kb) |
| POA/12 | Association of Independent Retirees (A.I.R.) Limited (Victorian Division) | 10 August 2009 | PDF (201Kb) |
| POA/13 | Respecting Patient Choices - Advance Care Planning | 12 August 2009 | PDF (106Kb) |
| POA/14 | Action on Disability within Ethnic Communities (ADEC) | 18 August 2009 | PDF (103Kb) |
| POA/15 | Australian Association of Gerontology Inc. | 19 August 2009 | PDF (140Kb) |
| POA/16 | Dr Ian F. Turnbull | 20 August 2009 | PDF (96Kb) |
| POA/17 | Ms Shirley Logan | 20 August 2009 | PDF (57Kb) |
| POA/18 | Credit Union Australia Ltd | 20 August 2009 | PDF (361Kb) |
| POA/19 | St Vincent's Hospital | 20 August 2009 | PDF (364Kb) |
| POA/20 | Peter MacCallum Cancer Centre | 20 August 2009 | PDF (112Kb) |
| POA/21 | Mr Julian Gardner | 20 August 2009 | PDF (345Kb) |
| POA/22 | Murray Mallee Community Legal Service | 20 August 2009 | PDF (241Kb) |
| POA/23 | Ethnic Communities' Council of Victoria | 20 August 2009 | PDF (217Kb) |
| POA/24 | Hunt & Hunt | 20 August 2009 | PDF (286Kb) |
| POA/25 | Royal District Nursing Service | 20 August 2009 | PDF (329Kb) |
| POA/26 | Royal College of Nursing Australia | 20 August 2009 | PDF (314Kb) |
| POA/27 | Trustee Corporations Association of Australia | 21 August 2009 | PDF (657Kb) |
| POA/28 | Royal Victorian Association of Honorary Justices | 21 August 2009 | PDF (120Kb) |
| POA/29 | Australian and New Zealand Society for Geriatric Medicine, Victorian Division | 21 August 2009 | PDF (383Kb) |
| POA/30 | Southern Health | 21 August 2009 | PDF (172Kb) |
| POA/31 | Moores Legal Pty Ltd | 21 August 2009 | PDF (299Kb) |
| POA/32 | Alzheimer's Australia Vic | 21 August 2009 | PDF (651Kb) |
| POA/33 | The Institute of Legal Executives (Victoria) | 21 August 2009 | PDF (133Kb) |
| POA/34 | Mr George Madden | 21 August 2009 | PDF (1.28Mb) |
| POA/35 | Mr Grant Sturgeon | 21 August 2009 | PDF (66Kb) |
| POA/36 | Hume Riverina Community Legal Service | 21 August 2009 | PDF (233Kb) |
| POA/37 | Mr John Billings, Deputy President, Guardianship List, Victorian Civil and Administrative Tribunal (VCAT) | 21 August 2009 | PDF (1.46Mb) |
| POA/38 | Seniors Rights Victoria | 24 August 2009 | PDF (3.71Mb) |
| POA/39 | Council on the Ageing Victoria | 24 August 2009 | PDF (488Kb) |
| POA/40 | The Victorian Bar | 24 August 2009 | PDF (1.43Mb) |
| POA/41 | Law Institute of Victoria | 24 August 2009 | PDF (1.57Mb) |
| POA/42 | Victoria Legal Aid | 24 August 2009 | PDF (280Kb) |
| POA/43 | Southport Community Legal Service Inc. | 24 August 2009 | PDF (349Kb) |
| POA/44 | Latrobe Regional Hospital | 24 August 2009 | PDF (147Kb) |
| POA/45 | M.F. Spottiswood | 24 August 2009 | PDF (246Kb) |
| POA/46 | Health Services Commissioner | 24 August 2009 | PDF (93Kb) |
| POA/47 | Federation of Community Legal Centres (Victoria) Inc | 25 August 2009 | PDF (361Kb) |
| POA/47S | Federation of Community Legal Centres (Victoria) Inc - supplementary submission | 19 October 2009 | PDF (120Kb) |
| POA/48 | Ministerial Advisory Council of Senior Victorians | 25 August 2009 | PDF (326Kb) |
| POA/49 | Financial Planning Association of Australia Limited | 25 August 2009 | PDF (296Kb) |
| POA/50 | St Kilda Legal Service Co-Op Ltd | 25 August 2009 | PDF (238Kb) |
| POA/51 | Moreland Community Legal Centre Inc. | 26 August 2009 | PDF (273Kb) |
| POA/52 | Victorian Equal Opportunity & Human Rights Commission | 28 August 2009 | PDF (601Kb) |
| POA/53 | Aged & Community Care Victoria | 28 August 2009 | PDF (421Kb) |
| POA/54 | National Seniors Australia | 31 August 2009 | PDF (204Kb) |
| POA/55 | Australian Bankers' Association | 31 August 2009 | PDF (608Kb) |
| POA/56 | Dr John Myers | 3 September 2009 | PDF (3.35Mb) |
| POA/57 | Ms Jeni Lee | 3 September 2009 | PDF (287Kb) |
| POA/58 | State Trustees Limited | 7 September 2009 | PDF (1.36Mb) |
| POA/59 | Mental Health Legal Centre Inc. | 8 September 2009 | PDF (638Kb) |
| POA/60 | Mr James Roughley | 8 September 2009 | PDF (121Kb) |
| POA/61 | Ms Sue Field, NSW Trustee and Guardian Fellow in Elder Law, University of Western Sydney | 11 September 2009 | PDF (195Kb) |
| POA/62 | Mr Matthew Hughes | 14 September 2009 | PDF (82Kb) |
| POA/63 | Elder Rights Advocacy | 16 September 2009 | PDF (471Kb) |
| POA/64 | Mr Ange Kenos JP | 25 September 2009 | PDF (66Kb) |
| POA/65 | Carers Victoria | 25 September 2009 | PDF (1.1Mb) |
There may be further submissions waiting to be tabled at a Committee meeting. Submissions will only be published on the website after they have been tabled at a Committee meeting.