As if navigating the legal admin of future planning wasn’t hard enough, there are different rules and laws ruling over this process in different Australian states. Whether you're in NSW or Queensland, WA or Victoria, depends on how the power of attorney process will look for you. But first, let's do a quick recap on what power of attorney is.
What is a Power of Attorney?
Power of attorney is a legal document that allows an individual, known as the principal, to appoint another person, known as the attorney, to make decisions on their behalf. The attorney is granted the power to make decisions about the principal's financial, legal, and personal affairs.
POA Similarities in Victoria & Western Australia:
In Victoria and Western Australia, power of attorney is governed by different laws: the Powers of Attorney Act 2014 for Victoria, and the Powers of Attorney and Guardianship Act 2018 for WA.
Whilst representing seperate laws, both of these acts allow appointed power of attorney’s to make decisions on the principal's behalf either on a general basis, or in relation to specific matters. The attorney's powers can also be limited by the principal, for example limiting financial decisions to a certain subset of assets. Differences in these acts do however manifest in a couple, interesting differences between Victoria and WA power of attorney rules. Read on to find out how this could effect you.
Differences in Power of Attorney in Victoria vs WA?
Enduring vs Supportive Attorney stipulations
Firstly, the 2014 Victoria act provides for the appointment of an enduring power of attorney. This allows the attorney to make decisions on the principal's behalf even if the principal loses capacity; covering healthcare and personal outcomes. In addition to this appointment, the 2018 WA act provides for the appointment of a supportive attorney. This role allows the attorney to assist the principal in making decisions before they lose capacity, rather than making decisions on their behalf.
The key difference here is that the appointment of a supportive attorney in WA does not require the principal to have lost capacity. In contrast, Victoria laws stipulate that an enduring power of attorney can only be appointed if the principal has lost capacity.
2. Authority & Lost Capacity
The second key difference is that in Western Australia, if the principal loses capacity, the appointment of a supportive attorney will automatically cease, whereas in Victoria, an enduring power of attorney remains in effect even if the principal loses capacity.
3. Process of Appointment
The process of creating and registering a power of attorney is quite similar between the two states; with both requiring the power of attorney document to be signed by the principal and the attorney, and then witnessed by a qualified person. It is however worth noting that in Western Australia, this witness can also be the commissioner for declarations.
To Wrap Up
The fundamental concept and motive behind the legal authorities of a power of attorney are shared between Victoria and WA. Whilst Western Australia creates a formalised attorney role for supportive decision making before capacity is lost, in Victoria capacity must be lost before the attorney has any authority. When capacity is lost, the states are relatively similar- in that an enduring power of attorney can commence decision making authority on behalf of the principle at this point.
Start planning ahead today
Get started on making provisions for your future, today. Whether that's writing your will, appointing your executor or your power of attorney- Safewell can help. Offering expert legal advice and compassion to support you at every step of the way.
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