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Making a power of attorney or guardianship

A power of attorney or guardianship is easy to make by following the instructions and filling in the relevant form (see ‘Powers of attorney & guardianship forms’ link below).

The form does not have to be prepared by a lawyer, but if your financial or legal affairs are complex you should get legal advice.

You will need witnesses for some of the powers. There are restrictions on relatives, the attorney or guardian, or alternate decision-makers being witnesses, so check the instructions with each of the forms. People who witness you signing the form must believe that you have the capacity to make the power of attorney or guardianship. If there is any question about your capacity, get an independent medical assessment.

If you are unsure about what to do or have any questions, you can contact the Office of the Public Advocate (link below) for advice and further information.

Who can make a power of attorney or guardianship?

To appoint someone as your attorney or guardian, you must:

be 18 years of age or older
have sufficient capacity to make the appointment.

‘Capacity’, or ‘legal capacity’, means you have the ability to reason things out. You can understand, retain, believe, evaluate (that is, process) and weigh up relevant information. This means that at the time of making the appointment of power of attorney or guardianship, you must be able to understand things like:

what sorts of powers the attorney or guardian will have
what sorts of decisions they will have the authority to make
when and how they will have the authority to exercise that power
the effects that their power could have on you and the things that are important to you
how to cancel or change the arrangement in the future.

Then you must be able to weigh up the risks and benefits and make a decision based on what matters most to you, without pressure from anyone else. When you make a decision in this way, you have made an informed decision or given informed consent.

You might make very a different decision from other people who are in similar situations to you and that is fine. As far as the law is concerned, the important thing is that you have understood the general nature of your decision and you have made your decision freely.

How capacity is determined

You are not required to take a test to determine your capacity. The law assumes that you have capacity once you turn 18.

However, for all enduring powers of attorney the witnesses are required to check your capacity by asking questions to make sure you understand the document you are signing and the powers you are giving your attorney.

For any power of attorney or guardianship appointment to be valid, the person who signs the form must also have capacity at the time they sign it.

If a person does not have the capacity to make an informed decision any form they sign will not be legally valid.

A legal body such as the Supreme Court or the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) can find that a person did not have capacity to sign a power of attorney or guardianship form. You may need a doctor or other expert to give their opinion about your capacity to make decisions.

Who decides when I can no longer make decisions for myself?

It is most likely to be your attorney or guardian who will make a decision about when you lose capacity. They may be assisted by your doctor or health care service. There may be a period of time where you have capacity, but are very frail, and so you rely more on these people to help you. This may assist you to clarify whether you can trust them.

Your capacity may be good one day and poor the next. This will make it difficult for professionals and your attorney or guardian to determine whether you have capacity.

Just because you have lost capacity does not mean that you should not be involved in decision-making. Your attorney or guardian should make decisions that are in your best interests in consultation with you.