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Reforming powers of attorney laws

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Cite as: December 2010 84(12) LIJ, p.68

A parliamentary committee could dramatically change Victoria's powers of attorney legislation.

The state’s powers of attorney laws are set for sweeping changes, if the views of the cross-party Victorian Parliament Law Reform Committee hold sway.

The committee’s 321-page Inquiry into Powers of Attorney: Final Report incorporates 90 recommendations, the most significant of which include the call for mandatory registration of enduring powers of attorney (at the Registry of Births, Deaths and Marriages) and the enactment of a suite of provisions designed to deter and prevent the abuse of powers of attorney.

The report is not quite as comprehensive as it might have been, with the committee’s terms of reference stopping it from giving detailed consideration to the enduring power of attorney (EPA) relating to medical treatment. That meant the committee could only examine the enduring power of attorney as applied to financial matters, the enduring power of guardianship (which the committee would rename the enduring power of attorney (guardianship)) and the general power of attorney (to become the general (non-enduring) power of attorney).

Those who put submissions to the committee did not feel so constrained.

The legislators who are now reviewing the report could easily extend many of its key recommendations with amendments to the Medical Treatment Act if they believe this is warranted.

The report’s thrust addresses three interrelated concerns about Victoria’s powers of attorney laws:

  • that their sporadic development, across three Acts, has led to technical inconsistencies and less-than-ideal statements of key concepts and principles;
  • that the laws do not do enough to counter and deter abuse; and
  • that public knowledge and uptake of powers of attorney are not what they might be.

Key concepts and inconsistencies

The committee has called for new comprehensive powers of attorney legislation (recommendation 1) and is keen to limit the names given to parties to powers of attorney. These currently include “donor”, “appointor”, “attorney”, “agent” and “enduring guardian”. The committee prefers “principal” and “representative” (recommendation 5).1

More substantive proposals here would:

  • provide greater guidance on the question of when a principal has capacity (recommendation 34);2
  • more clearly articulate the duty of representatives to honour the wishes of principals wherever possible (recommendations 3 and 49); and
  • enable the EPA (guardianship), like the current EPA (financial), to be active immediately upon signing, unless the principal wishes otherwise (recommendation 25).

This latter proposal would remove the need to pinpoint a time when the principal loses capacity in order for the instrument to be operable, a problem particularly in situations where people have fluctuating capacity levels.3

Deterring and catching abuse

The committee proposed a number of strategies to deter and resolve situations of abuse. The requirement for EPA registration was one of these, although the committee was not confident this alone would significantly diminish abuse (recommendations 67, 73).4

The committee has recommended the creation of a range of new offences, including “not acting honestly and with reasonable diligence to protect the principal’s interests, having regard to the principal’s expressed wishes” (recommendation 61).

Witnessing requirements provide one way of preventing inappropriate execution of powers of attorney. The committee has called for parties and their relatives to be prohibited from fulfilling this role (recommendation 16). Currently, a relative can be one of the witnesses for an EPA (financial).

The committee has also proposed that one of the two required witnesses either be able “to witness affidavits or is a medical practitioner”, a recognition of the frequency with which EPAs are signed in hospitals. Currently one of the witnesses to an EPA must be able to take statutory declarations, a category the committee was told is so broad that some parties “shop around” if awkward questions are asked (recommendation 15).5

Perhaps the most novel of the committee’s recommendations concerns the optional appointment of personal monitors (recommendations 57, 60 and 64), who must be advised of certain activities under EPAs, and who would have standing to initiate proceedings at the Victorian Civil and Administrative Tribunal (VCAT).

The committee also recommended the Office of the Public Advocate be empowered “to receive reports of suspected abuse of powers of attorney”, following which it could instigate proceedings at VCAT or make appropriate referrals (recommendation 56).6

Encouraging uptake

Powers of attorney are essentially private documents, and we really have very limited knowledge about the extent of their use. One federal inquiry heard the uptake rate was around 11 per cent, but this figure is not authoritative.7

A number of the committee’s recommendations concern the need to improve the public’s knowledge about powers of attorney, especially that of marginalised groups, and to encourage people to consider signing them (recommendations 78-87). This, of course, will involve more than just legislative change. We now await the government’s response.



JOHN CHESTERMAN is manager of policy and education at the Office of the Public Advocate. He coordinated the office’s submission to the Law Reform Committee (see http://bit.ly/cVR0rg) and gave evidence before the committee.

1. Changing “donor” and “agent” in the EPA (medical treatment) will require amendment of the Medical Treatment Act.

2. And Victorian Parliament Law Reform Committee, Inquiry into Powers of Attorney: Final Report (August 2010), p113. See http://bit.ly/cXkvCj.

3. Note 2 above, pp91-2.

4. And note 2 above, p228.

5. And note 2 above, pp73-4.

6. And note 2 above, p192.

7. Note 2 above, pp20-21.

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