As we grow older, planning for the future becomes essential. Among the most important legal tools available to protect your wellbeing and financial security are Enduring Powers of Attorney (for Financial and Personal Matters) (EPA).
In Victoria, this document allows you to appoint trusted individuals to make decisions on your behalf in respect of your financial and personal matters.
Understanding an EPA
In the Victorian jurisdiction, an EPA is the legal document used to appoint one or more attorneys to make decisions on your behalf in respect of financial, legal and/or personal matters and is legislated under the Powers of Attorney Act 2014 (Victoria).
Other states and territories have their own legislation about the appointment of attorneys for financial and personal matters and, in some states and territories, the Enduring Power of Attorney (for Personal Matters), is referred to as the Enduring Power of Guardianship.
Financial and personal matters account for the following:
Enduring Power of Attorney – Financial Matters
This allows someone to make financial and legal decisions for you, including:
- Managing bank accounts;
- Paying bills;
- Managing and selling property;
- Handling investments; and
- Dealing with agencies and institutions.
This role should be given to those who you trust to make financial decisions on your behalf and will ensure to act in your best interests, rather than their own.
Enduring Power of Attorney – Personal Matters
This covers decisions about your day‑to‑day life, such as:
- Where you live;
- Who provides your care;
- Access to services and support.
This role should be given to those who respect your values and preferences.
Depending on how you have prepared your EPA, your nominated attorney/s may be able to begin acting in their role either immediately after signing their acceptance to act or only once you have been declared by a doctor to have lost your decision-making capacity.
You may also wish to appoint different attorneys to act for different types of financial and/or personal matters. For example, you may appoint one person to act as your attorney for a specific financial matter, such as managing your personal investments and another person as your attorney for different financial matters, such as controlling your interests in a business.
The Rising Concern: Elder Abuse and Power of Attorney Misuse
Sadly, misuse of Powers of Attorney is a key pathway for this type of harm. Examples include:
- Using an elderly person’s funds for personal gain;
- Pressuring someone into signing an EPA and appointing someone they did not wish to appoint;
- Restricting your access to money, services or support;
- Making decisions in the attorney’s personal interests and not yours.
Because these arrangements often operate within families and behind closed doors, abuse can go unnoticed or unreported.
Choosing the Right Attorney or Attorneys for your EPA
- Trustworthiness: They must have shown integrity, honesty and accountability.
- Respect for Your Wishes: Your attorney must act in accordance with your best interests, not theirs.
- Conflicts of Interest: Avoid appointments where the attorney may benefit personally or where family dynamics create risks.
- Multiple Attorneys: Appointing more than one person to act either jointly or by a majority can provide an extra layer of oversight, if they can work well together.
If you suspect that an attorney is misusing their authority, in Victoria, the Victorian Civil and Administrative Tribunal (VCAT) can review the attorney’s conduct, revoke their appointment and, if necessary, appoint an administrator or guardian in their place to protect the principal’s interests and, in extreme circumstances order that the offending attorney recompense the principal for any funds/assets which may have been misappropriated by them. Concerned family members, friends, or professionals may apply to VCAT if they believe the principal is at risk of harm, exploitation or financial loss.
Early Planning and Protecting Yourself
Implementing Powers of Attorney while you have decision making capacity ensures your wishes are respected and any potential family conflict is minimised. It also allows you to choose the right people for these important roles and to build in safeguards with proper legal advice.
In Victoria, an EPA is one of the strongest tools you have to safeguard your financial and personal wellbeing, but only when the person appointed is genuinely trustworthy and prepared to act in your best interests. Sadly, elder abuse often occurs within families, which is why careful planning is essential.
If you’d like to prepare an EPA, or if you’re worried someone in your life may be experiencing abuse involving an EPA, feel free to contact us on 03 9598 9489.
