The Powers of Attorney Amendment Bill 2016 was recently introduced to the Victorian Parliament.
The main purpose of the Bill is to improve the operation of the Powers of Attorney Act 2014 which came into operation in Victoria on 1 September 2015.
The key improvements proposed by the Bill include:
Scope of powers of an attorney
Currently the Enduring Power of Attorney form for personal and financial matters requires a principal to authorise the attorney(s) to either:
Option 1:
do anything on the principal’s behalf that the principal can lawfully do for:
(a) personal matters
(b) financial matters
(c) both personal and financial matters
Option 2:
do anything on the principal’s behalf that the principal can lawfully do under section 22(1) of the Act.
The Bill acknowledges that the choice of Option 1(c) or Option 2 presents an unclear and confusing choice for principals and their advisors.
Proposed change: Clarify that to ‘do anything’ under Option 2 means that a person can confine what is authorised to be done by an attorney to personal matters only, financial matters only or to matters specified in the Enduring Power of Attorney.
The change will not affect any existing Enduring Powers of Attorney.
Alternative attorneys
The Act permits a principal to appoint an alternative attorney for any attorney.
However, the Act is unclear whether more than one alternative attorney can be appointed for an attorney. For example, can a husband appoint his wife to be his attorney with his two adult children as the alternates?
Proposed change: specify that more than one alternative attorney can be appointed for each attorney, and an alternative attorney can be appointed for more than one attorney.
In the above example, this means that the husband could appoint his wife as his attorney and his two adult children as alternative attorneys if, for example, his wife dies or is not willing or able to act.
Other
The Bill also proposes to:
- automatically revoke an old Enduring Power of Attorney or Enduring Guardian when a new Enduring Power of Attorney is made, unless specified otherwise;
- allow a principal to revoke an old Enduring Power of Attorney or Enduring Guardian using the revocation procedure in the Powers of Attorney Act 2014; and
- makes various technical amendments to the Act to clarify its understanding.
If approved, the above changes will be effective from 1 May 2017, unless an earlier date is proclaimed.
More information
If you need any assistance or advice regarding Enduring Powers of Attorney, please contact a member of our Estate Group on (03) 8600 8885.
Note: This update is a guide only and is not intended to constitute legal advice.