This article is the continuation of the article which was published in last month’s issue of Pak Awaaz written by By Susan Campbell and Hyder Gulam.
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.