The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Welcome changes to Powers of Attorney Law

Welcome changes to Powers of Attorney Law

New Power of Attorney legislation comes into force on 1 September 2015. The legislation provides some exciting and beneficial changes that the team at OFRM have been waiting for.

The changes

There has been a significant shake up of what were previously known as Enduring Financial and Guardianship Powers of Attorney.

Previously, attorneys appointed by a principal were restricted to acting together or separately. There was no scope for a majority decision. Under the new legislation you can specify that a majority can act and make decisions. This allows for 2 of 3 attorneys instead of restricting options to either 3 attorneys acting all together or each acting individually.It balances protection with practicality.

Another significant change is that attorneys are able to pay gifts on behalf of a principal if those gifts have been something the person did prior to the Power of Attorney taking effect. For example, if a grandmother has consistently given her grandchildren a gift for their birthday these gifts are still able to continue. That wasn’t possible under the old legislation.

Attorneys are now more accountable to the principal through the disclosures they must make when agreeing to become an attorney.

The new form and legislation combines the previous Enduring Financial Powers of Attorney and Guardianship Powers of Attorney into one document and what was known as guardianship is now known as personal matters. Personal matters are considered to be personal or lifestyle affairs and now empower an attorney to make many more decisions than they were previously able.

If you have current Powers of Attorney...?

What does the new legislation mean for your current Powers of Attorney? For the most part the new legislation will apply to any Financial and Guardianship Powers of Attorney entered into prior to 1 September 2015, however there are some new provisions that can only be used if new Powers of Attorney are put in place — for example the provision of gifts, the use of majority attorneys and using the single Power of Attorney for both your personal and financial matters.

The Supportive Attorney

Not only has the legislation combined the Guardianship and Financial Powers of Attorney but the new legislation has created a new Power of Attorney known as a Supportive Attorney. A Supportive Attorney is authorised to act in circumstances that you specify and is only used when you have capacity. Effectively the power is used to provide support to whatever decision you make if you have capacity to make the decision. A Supportive Power of Attorney however cannot be used if you do not have capacity.

The new legislation provides some much needed improvements to the current powers provided to an Attorney. The changes provide more peace of mind for both those making the powers and the attorneys they appoint.