Powers of Attorney and Guardianship and Administration
Substitute decision-making instruments include general and enduring powers of attorney, guardianship and administration processes and medical treatment decisions and advance care directives.
If a client comes to you for advice regarding an assets for care arrangement, this may be a good time to also discuss substitute decision-making.
Lawyers require a detailed understanding of current mechanisms for substitute decision-making and their problems and failings. You also need to know where to go and what to do if abuse of powers is suspected or reported. A decision-maker acting for someone who lacks decision-making capacity must do so in a way that is least restrictive, and ensure the person is given practicable and appropriate support to enable them to participate in decisions affecting them as far as possible.
Regarding the need for substitute decision-making tools, see section on Capacity. The Powers of Attorney Act 2014 (Vic) makes a clear statement that a person is presumed to have decision-making capacity unless there is evidence to the contrary. A diagnosis of dementia does not necessarily equate with incapacity to make decisions, and a medical assessment does not determine a person’s ability to instruct a solicitor (see O’Connor & Purves 2009). The older person may need empowering as much as protecting and there may be less intrusive ways to support the older person than to activate an Enduring Power of Attorney or appoint a guardian or administrator. Removing another’s autonomy to act independently should be the last resort and consequently preference needs to be given to supported decision-making rather than substitute decision-making.
Supported decision making
Supported decision-making is an alternative to substitute decision-making. The Powers of Attorney Act 2014 (Vic) allows the appointment of a supportive power of attorney.
A supportive attorney cannot act on decisions about significant financial transactions, but can support the person by providing and eliciting information, communicating with organisations on the person’s behalf and giving effect to their decisions.
For more information see OPA’s guide Supported Decision-Making in Victoria at https://www.publicadvocate.vic.gov.au/resource/31-supported-decision-making-in-victoria
Remote witnessing of power of attorney documents
The Powers of Attorney Act 2014 allows for enduring powers of attorney to be electronically signed and witnessed with all persons in separate spaces connected by audiovisual link. OPA recommends that remote witnessing is used as a last resort. Remote witnessing is complex and if a document is not witnessed in a valid manner, it may not be legally binding.
Advance care directives and appointments of medical treatment decision makers cannot be witnessed remotely.
Information about remote witnessing is available from at https://www.justice.vic.gov.au/justice-system/legal-assistance/powers-of-attorney-documents-online-witnessing
Recommended resources on substitute decision-making
- The Office of the Public Advocate (OPA) has information and fact sheets on administration, guardianship, powers of attorney and medical treatment (including in other languages). http://www.publicadvocate.vic.gov.au
- The Take Control kit from OPA/VLA can assist in the drafting of documents to ensure they contain safeguards and limit the attorney’s powers to what are needed. The kit has information and forms to make, change or revoke powers of attorney and guardianship. A new edition of this booklet will be available in March 2018. Take Control kit.
- OPA’s Guardianship and Administration Flowchart is a useful guide to the process of decision-making, capacity assessment, types of substitute decision-making needed.
- See also Victorian Civil and Administrative Tribunal website for online and video guides, online application forms and useful information about VCAT procedures. http://www.vcat.vic.gov.au
- See also Victoria Legal Aid facts on Powers of Attorney or Guardianship, and facts on Administration Orders.