By Susan Campbell 1 and Hyder Gulam 2
The purpose of this short article3 is to provide the Muslim community with a brief overview of the various Powers of Attorney. Given the number of different instruments, purpose and limits, it is not surprising that a degree of uncertainty arises when dealing with these appointments. This article is based on the law in the State of Victoria, and there may be slight differences in other States and Territories. As always, this article is no substitute for specific legal advice, and if you are unsure what to do in your specific circumstance, we recommend you consult with a legal practitioner.
become bankrupt; or
becomes mentally or physically incapable of running his/her own affairs.
Forms of Powers of Attorney
Each of the four different documents described below can be used by a person (the “donor” of the power) to appoint a representative to act on the donor’s behalf. Which document is appropriate will depend on the nature of the powers that is intended to be given to the representative (whether as Attorney, agent or Guardian) and when it is intended that representative be able to exercise those powers.
(a) General Power of Attorney:
Under a General Power of Attorney, a donor can appoint a person, often for a specific period of time, to make financial and legal decisions on the donor’s behalf. The General Power of Attorney can specify when and in what circumstances it is to operate and can set out a date or event upon which the power of the Attorney terminates.
A General Power of Attorney may be useful to give during a period when a person is going to be away for any length of time (for example overseas or hospitalised).
- A General Power of Attorney will cease to have effect immediately if the donor:
- become bankrupt; or
- becomes mentally or physically incapable of running his/her own affairs.
(b) Enduring Power of Attorney (Financial):
An Enduring Power of Attorney permits the Attorney to execute and make decisions of a financial and/or legal nature (but not medical or guardianship decisions) and, unlike the General Power of
1 Susan Campbell is a Senior Associate with Logie-Smith Lanyon Lawyers. As well as practising in general commercial law, she provides private client services which include advising clients in relation to, and the drafting of, powers of attorney and Wills. Prior to being admitted to practice as a lawyer, she worked with the Australian Customs Service, as a pensions officer with the then Department of Social Security, as an investigation officer with the Commonwealth Ombudsman’s office and in her own small businesses. 2 Hyder Gulam was born in Singapore and educated in Melbourne. He is a registered nurse, a qualified lawyer, an accredited mediator as well as a Fellow of the Royal College of Nursing in Australia. He has post graduate qualifications in business/management, law and nursing. He has served as an officer with the Royal Australian Air Force, both in Australia and overseas. He has published in areas such as trans-cultural nursing, health law, criminal law and military law. Hyder has also worked in indigenous health, paediatric nursing, aged care, as well as emergency and trauma. Hyder is employed as a lawyer with Logie-Smith Lanyon Lawyers. 3 This paper has sourced material from the following Victorian Government and legal websites: http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/The+Justice+System/Power+of+Attorney/; http://www.liv.asn.au/public/legalinfo/wills/wills-Powers.html; and http://www.publicadvocate.vic.gov.au/
Attorney, continues in force even if the donor becomes mentally or physically incapable of running his/her own affairs.
The Enduring Power of Attorney (Financial) enables the donor to specify:
- how he/she wants the Attorney to carry out their responsibilities;
- any special conditions which are to apply to the nature of the Attorney’s power;
- when the Attorney’s power is to begin e.g. immediately, on a specified date, or on a specified occasion.
The Enduring Power of Attorney (Financial) is only effective once the Attorney has accepted the appointment in writing. An Attorney has great responsibilities, including:
- an obligation to act with reasonable diligence;
- an obligation to consider whether action is necessary, and if so, act appropriately; and
- a duty to keep records and accounts of the Attorney’s dealings.
The donor’s execution of the Enduring Power of Attorney (Financial) must be witnessed by two people at least one of whom must be a person authorised to take statutory declaration, such as a solicitor.
(c) Enduring Power of Attorney (Medical Treatment):
This seems to be the main document which interfaces with medical treatment. This document permits the donor to appoint an agent to make decisions about medical treatment on the donor’s behalf e.g. whether to consent to or refuse medical treatment. It only becomes valid once the donor becomes incompetent through ageing, mental or physical illness or injury. This document may be accompanied by a statement as to the donor’s wishes in relation to resuscitation and life support. For a comprehensive overview of ‘Advanced Directives’ refer to a discussion paper by the Federation of Community Legal Centres (Victoria).4
Note, however, even if medical treatment is to be withdrawn, sustenance and pain relief continues by law. Also there are certain medical procedures that an Attorney does not have the authority to consent to, such as termination of pregnancy or procedures that may lead to infertility. For such procedures to be carried out the agent must apply to the Guardianship List at VCAT.
(d) Enduring Power of Guardianship:
Under this document, a donor is able to appoint someone to make day-to-day life decisions on the donor’s behalf. The appointment only becomes valid once the donor becomes incompetent to make his/her own decisions.
The donor can set out what sorts of decisions he/she wants the Guardian to make. If no limits to the powers of the Guardian are specified, the Guardian will have the same decision making powers as a parent over a child, such as where the donor lives, whether or not the donor works, who the donor’s visitors may be. A Guardian can also consent or withhold consent to medical treatment but cannot refuse medical treatment.
This appointment must be accepted by the Guardian and witnessed by two persons, at least one of whom is a person authorised to take Statutory Declarations.
Interaction Between Various Powers of Attorney
If a donor has appointed both an enduring Guardian and an agent under an Enduring Power of Attorney (Medical Treatment) the decision of the agent will take precedence over that of the enduring Guardian in relation to any proposed medical treatment. Only an agent may refuse medical treatment. The enduring Guardian may only withhold consent to medical treatment, not refuse it. A decision by your agent to refuse medical treatment will override any consent to the treatment given by your enduring Guardian.
While many of an enduring Guardian’s decisions have financial implications, the power of guardianship does not strictly extend to financial matters. If a donor has appointed an enduring Attorney, that person will, subject to any limitations specified in the appointment, have the power to make financial decisions.
A donor may appoint the same person under an Enduring Power of Guardianship, an Enduring Power of Attorney (Financial) and an Enduring Power of Attorney (Medical Treatment). But in any event, if a donor has appointed two or more people under these documents, those people need to be able to co-operate with each other.
Each of the Enduring Power of Attorney (Financial), the Enduring Power of Attorney (Medical Treatment) and Enduring Power of Guardianship is valid until the death of the donor or until or unless it is revoked.
Subject to any limitations placed on an appointment under a General Power of Attorney, the appointment remains valid until or unless:
- one of the circumstances set out in section (a) above, which results in an appointment immediately ceasing to have effect, arises; or
- it is revoked.
Each of the four documents referred to above can be revoked in a number of ways, including:
- by the donor, providing you have the necessary legal capacity to do so;
- by the representative;
- by VCAT (Guardianship List);
- partially, by revocation of the appointment of one of severally appointed Attorneys; and
- in the case of the Enduring Power of Attorney (Medical Treatment) by executing a subsequent Enduring Power of Attorney (Medical Treatment).
While it is possible to revoke an appointment orally this is not recommended, particularly if there are several copies of the appointment document in circulation.
A donor can revoke the power by destroying the document and any copies. There is also a formal “revocation of power of attorney form” which can be used and which must be signed by two witnesses. In any event, if a donor wishes to revoke any appointment, he/she should endeavour to obtain written acknowledgement from the representative that the appointment has been revoked.
The Guardianship List at VCAT can revoke an appointment. This is generally done in a situation where the donor has lost mental capacity. An application can be brought before the List, and the Tribunal may revoke the appointment if it finds the attorney is not acting in the best interests of the donor.
The intent of this paper is to give the Muslim community an overview of the number of different instruments, purpose and limits that consist of Powers of Attorney. This article has attempted to remove some of the uncertainty with regards to Powers of Attorney, which hopefully can be used in advanced planning by members of the Muslim community when travelling overseas for holidays, or performing haj and/or umrah.