A Power of Attorney is a legal document that allows you to control who makes decisions for you, while you are still alive. At some point in your life, you may consider appointing a trusted family member or friend to make decisions on your behalf.
Differences between a Power of Attorney, Guardianship/Administration Order, and Wills
In each of these instances, the person you appoint is referred to as the ‘attorney’, and you are called the ‘principal’.
Power of Attorney
The principal decides whom to appoint as their attorney(s) whilst the principal is still alive.
There are different types of powers you can give your attorney.
For either Guardianship or Administration orders, the intended attorneys make an application to VCAT to have themselves appointed for the principal.
This is done whilst the principal is still alive.
The terms of a will are decided upon by the principal, and only come into operation after death.
An attorney also cannot alter the principal’s Will.
Can a Power of Attorney be revoked or overridden?
An attorney is legally obligated to act in the principal’s best interests. The Power of Attorney document should be read carefully to determine whether the attorney followed the responsibilities.
If there is a belief that the attorney is not acting in the principal’s best interests, there are various ways a power of attorney can be revoked:
- If the principal is of sound mind, they can remove or change their attorney verbally, or via a ‘Revocation of Power of Attorney’ form. The form that is prepared is dependent on the type of power given.
- Ask the attorney to step down or renounce their authority. A family member or friend of the principal may request that the attorney give up their power.
- If the principal refuses to revoke the Power of Attorney, or the attorney refuses to step down, a court application can be made. This will not be a simple application as you will need to explain to the court why an attorney needs to be removed, and why the principal’s wishes would need to be rejected (e.g. due to mental incapacity).