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Powers of attorney and guardianship – frequently asked questions

Who can make a power of attorney or guardianship?
Should I see a lawyer before making any powers?
Who decides when I can no longer make decisions for myself?
What happens if I don’t have a power of attorney or guardianship?
How do I choose who to appoint?
Can I change or cancel my powers?
Can my attorney resign?

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 over
  • have sufficient capacity to make the appointment.

Capacity, or legal capacity, means you have the ability to reason things out. You canunderstand, 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.

Should I see a lawyer before making any powers?

It's your choice. If you feel confident that you understand the forms and your affairs are straightforward, you may not need to see a lawyer. However, you may choose to get legal advice if you:

  • are struggling to fill out the forms
  • have a complicated family situation
  • have complex financial arrangements
  • think someone may challenge your appointments and you need help getting evidence to support your capacity.

Contact the Office of the Public Advocate or your local community legal centre for more information. Victoria Legal Aid can give you advice about guardianship matters.

Related websites

Office of the Public Advocate

Community Law – community legal centres

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 healthcare service.

Just because you have lost capacity doesn’t 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.

What happens if I don’t have a power of attorney or guardianship?

There is nothing to say that you have to appoint attorneys or guardians, but there are consequences if you do not. For example, it could lead to conflict over who should take charge of the decision-making process if you become unable to do this yourself.

The way in which conflict can be resolved will depend on the type of decisions that need to be made.

Financial and lifestyle decisions
If you do not appoint an enduring power of attorney (financial) or guardian, and you lose capacity to make your own decisions, only the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) (link below) can appoint someone with the legal authority to make decisions on your behalf.

If the Guardianship List decides that you need someone to make decisions about your finances or legal affairs, they will appoint an ‘administrator’.

If they decide that you need someone to make decisions for you about other aspects of your life, they will appoint a ‘guardian’.
The Guardianship List has an obligation to take your views into account when appointing an administrator or guardian, but ultimately it is their decision, not yours.

Medical treatment decisions
If you do not appoint an attorney (medical treatment) or guardian with power to make medical treatment decisions, and you’re unable to make your own decisions about medical treatment, whoever is first on the following list can consent to medical treatment for you:

  • someone already appointed by the Guardianship List of VCAT to make medical decisions for you
  • someone you have appointed in some other way in writing to make medical treatment decisions for you
  • your spouse or partner
  • your primary carer (cannot be a paid professional carer)
  • your nearest relative.

These people cannot refuse medical treatment for you if you are unconscious and dying, even if you would not want the medical treatment or it would cause you unreasonable distress. Appointing an enduring attorney is the only way in which you can have control over who will make these end-of-life decisions for you if you are unable to make these decisions for yourself.

Related websites

VCAT Guardianship List

How do I choose who to appoint?

Choosing who is going to make decisions for you is particularly important when you are appointing someone with an enduring power, as they will have the authority to make decisions for you after you lose the capacity to change or cancel the appointment.

For someone to be your attorney or guardian they must:

  • be 18 years of age or older
  • have capacity.

Many people choose their spouse/partner or an adult child, but you may prefer to appoint another family member, a friend with expertise in the area, an accountant, a lawyer, State Trustees Limited or a trustee company. You should feel confident that the person or agency is competent and willing to take on the responsibility on your behalf.

Other things to consider:

  • Appoint someone you can trust
    Remember that any power of attorney or guardianship gives enormous power to the person you appoint. They will be able to make legally binding decisions about important areas of your life.
  • Appoint someone who can act according to your interests and not their own
    Don’t assume that the people who are closest to you will be the best decision-makers. Sometimes the people who know you the best are also the least objective.
  • Appoint someone who is likely to be able to take on the role when it is needed
    Often the powers will not be used for some time, particularly with enduring powers of attorney or guardianship. You need to appoint someone who is able to take on the role in the future.
  • Appoint someone who is happy to take on the role
    Talk with the person you want to be your attorney or guardian before making the appointment. Do not assume they want to take on the role.
  • Appoint someone who will listen to what you want and respect your preferences even after you have lost legal capacity
    Talk to the person about how you would want decisions made before you appoint them. This not only gives them an idea of how you would want them to act, but also gives you a sense of how open they are to listening to you and to accepting the sorts of decisions you would want made.
  • Appoint someone who is able to take on the role
    Make sure the person you appoint knows enough about the issues to be able to make appropriate and competent decisions.

Can I change or cancel my powers?

You may ‘revoke’ (withdraw) a power of attorney or guardianship at any time, as long as you have ‘capacity’ (the ability to reason things out). The revocation forms have instructions on how you can change or cancel each power.

If you do not have legal capacity, the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) can revoke a power if it believes that your attorney or guardian is acting improperly or against your best interests.

Related websites

VCAT Guardianship List

Can my attorney resign?

Yes. If your attorney decides that they can no longer fulfil their role, they can resign by giving you a signed notice. They can also get leave to resign from the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) or the Supreme Court, if you do not have capacity.

Related websites

VCAT Guardianship List