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.
It may be that you are undergoing major surgery, or are going overseas. This will allow your appointed person to act on your behalf whilst you are unable to do so yourself.
Differences between a Power of Attorney, Guardianship/Administration Order, and a Will
Power of Attorney
Under a Power of Attorney, the person appointing the power is known as the ‘principal’, and the person being appointed is known as the ‘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, such as power over your financial or personal matters, or both.
A principal can also limit the attorney’s power. For example, the principal can state in the Power of Attorney that their attorney is only to assist them with the sale of their house, or to open a bank account, or for the month of December. This is particularly helpful if the principal only needs assistance for a small period of time or for specific tasks.
Guardianship/Administration Orders
A Guardianship or Administration order is appointed over someone who has reduced capacity to make decisions. The person who is appointed to make decisions on their behalf is known as the ‘guardian’ or ‘administrator’.
The intended guardian or attorney makes an application to the Victorian Civil and Administrative Tribunal (VCAT) to have themselves appointed for the principal.
This is done whilst the principal is still alive.
Wills
In a Will, the principal appoints an ‘executor‘ to distribute their assets, wind up accounts, make funeral arrangements etc.
The terms of a Will are decided by the principal, and only come into operation after death.
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 their 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).
Contact W Legal Group
If you have more questions on how a Power of Attorney works, or you would like assistance with revoking a Power of Attorney, contact us via phone or email to speak to our expert legal team.
