Changes to powers of attorney

12 May 2017
New changes aim to address gaps in the Powers of Attorney Act by providing greater clarity and flexibility in the operation of enduring powers of attorney, especially when multiple attorneys have been appointed and when older powers are to be revoked.

The Powers of Attorney Amendment Act 2016 (Vic) (the Amendment Act) received Royal Assent on 15 November 2016. It made various changes with respect to primary and alternate attorney appointments, revocations, attorney resignations, multiple attorneys, attorney conflicts of interest and rehearing applications.

The following changes to the Powers of Attorney Act 2014 (Vic) (the POA Act) came into effect on 1 May 2017:

An enduring power of attorney (EPOA) can now be made: only for matters specified in the appointment; personal matters only; or financial matters only. Previously, section 22(2) only allowed for EPOAs made for personal matters, financial matters or both.

Greater flexibility in appointing primary and alternate attorneys, in that multiple alternate attorneys can replace one primary attorney; or one alternate attorney can replace multiple primary attorneys. This applies to enduring and supportive attorney appointments. Sections 31(1) and 93(1) previously allowed only one-for-one appointments.  

Provisions in the POA Act relating to revocation – both express and by default – now apply to “old enduring powers of attorney” made under the Instruments Act 1958 (Vic) and “old enduring powers of guardianship” made under the Guardianship and Administration Act 1986 (Vic) (old powers). This means revocation forms, as prescribed under the POA Act, can be used to revoke old powers.

Further, a later EPOA will now completely revoke an earlier EPOA, unless the later EPOA specifies otherwise. Previously, under section 55(1), a later EPOA revoked an earlier EPOA only to the extent that there is an inconsistency between the two appointments.

If an attorney resigns for a particular matter, and the principal still has capacity, their resignation is now revoked for that particular matter only. For example, if an attorney for personal and financial matters resigns as financial attorney, only their appointment for financial matters will be revoked. Previously, section 56(2) did not appear to contemplate the effect of resignation for a particular matter.

A new default position if the power of a majority attorney ends, and the remaining attorneys cannot make decisions by majority: the remaining attorneys must exercise the power jointly. For example, if the EPOA empowers three attorneys to make decisions by majority, and one of those attorneys resigns, the remaining two attorneys must make decisions jointly. According to section 151(3), this default position does not apply to EPOAs made under the Act as in force immediately before the Amendment Act. In its previous form, section 62 provided that the ending of majority attorney appointment does not affect the appointment of any remaining majority attorney. However, it did not appear to provide express guidance on how the remaining majority attorneys were to make decisions, and will continue to apply to EPOAs made under the Act as in force immediately before commencement of the Amendment Act.  

The duty of attorneys to avoid a conflict of interest is qualified, whereby the principal and VCAT can now authorise an attorney to act if there is a conflict. Previously, section 63(1)(d) only referenced conflicts authorised in the EPOA.

With leave from VCAT, a person with a “special interest” in the principal’s affairs can now apply for a rehearing, even if they did not receive a notice of hearing of the initial application. Previously, section 130(1)(b) only allowed a person to apply for a rehearing if they were a party to the hearing of the initial application, or received notice of it. These changes apply to applications made, but not yet determined, before commencement of the Amendment Act. The position that the Public Advocate can apply for a rehearing without leave from VCAT remains unchanged.

The role of a supportive attorney in requesting access to, or correcting, personal information on behalf of the principal is now expressly recognised in the Privacy and Data Protection Act 2014 (Vic).