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A Power of Attorney is a legal document which allows a person to nominate someone to make decisions for them if they are unable to make those decisions themself. It includes decisions about legal, financial, personal and medical matters.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that allows you to nominate one or more persons to act on your behalf for legal, financial and personal decisions (but not medical decisions), if something were to happen to you and you were unable to make those decisions yourself.

The person you nominate is referred to as your ‘Attorney’. You can also appoint an alternative person to make decisions for you in case the person you nominate dies or is unable or unwilling to act.  

If you don’t appoint an Attorney to make financial and personal decisions for you, and you are unable to make decisions for some reason, then a person will need to apply to the Victorian Civil and Administrative Tribunal (VCAT) to be able to make those decisions for you. This can be a timely and costly process and leave persons in charge of making decisions for you that you did not intend or want to.

What is an Appointment of Medical Treatment Decision Maker?

An Appointment of Medical Treatment Decision Maker is a document that allows you to nominate a person to make medical decisions for you if you are not able to make those decisions yourself. This document is more commonly known as a Medical Power of Attorney.

It is important that you plan for the possibility of illnesses or injuries in the future. You need to make these documents at a time that you have capacity to do so. If you do not have Power of Attorney documents in place, and you lose capacity and are no longer able to make decisions for yourself, it will be too late.

If you do not have an Appointment of Medical Treatment Decision Maker, the law in Victoria will determine who will make medical decisions for you if you are unable to make those decisions yourself. The law provides for a hierarchy of people who will be legally able to make decisions for you and who are ready, willing and able to do so.

Importantly, the person who is legally able to make decisions for you (in the absence of an Appointment of Medical Treatment Decision Maker), may not be the person you intended or wanted to make those decisions for you. They may not be the most appropriate or desirable person to make important decisions for your medical care and treatment.

What decisions can a Medical Treatment Decision Maker make?

A Medical Treatment Decision Maker can make decisions about your medical treatment or can refuse medical treatment on your behalf. Their decision must be the decisions they reasonably believe you would have made if you had been able to make decisions for yourself.

You should ultimately appoint someone that you trust as your Medical Treatment Decision Maker and you should discuss your wishes with them.

When does an Enduring Power of Attorney become operational?

You can appoint someone to start making decisions for you immediately, at your direction and on your authority, or you may want to appoint someone to make decisions for you only when you are unable to make those decisions yourself.

Both an Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker cease to operate upon your death.

Get help

At Emera Smith we can assist you now to plan for your future if something were to happen to you; such as you fall ill, are injured, or become incapacitated.

We help you to understand that although it can be daunting to consider another person making decisions on your behalf, you ultimately do not want to put your loved ones in a position where they are guessing your wishes or where they all do not agree on important decisions, causing stress, uncertainty and unnecessary cost.

The process will involve a meeting to take your instructions and talk through the options with you. We will then prepare your documents and meet with you, at any one of our three offices, to sign them. 

We can store your Power of Attorney documents securely for no additional cost, giving you peace of mind that the documents are safe and that your loved ones can easily locate and access them when the time comes that they need to.

Signing your Power of Attorney during COVID-19

At the present time, during stage four restrictions in Victoria, we are unable to meet face to face with you to execute (sign) your Enduring Power of Attorney.  

Further, even when stage four restrictions are lifted and we can meet you face to face to execute your Enduring Power of Attorney, you may feel uncomfortable about this until the pandemic is over.

During the COVID-19 pandemic, emergency legislation has been introduced to allow Enduring Powers of Attorney to be executed and witnessed remotely. You will require a webcam so that you can participate in an audio-visual link (such as Zoom) as well as a printer and scanner.

There will be certain situations where remote signing of your Enduring Power of Attorney will not be possible. Contact us today and we can discuss your circumstances and let you know whether remote signing in your situation is possible.  

Unfortunately, the emergency legislation does not allow for your Appointment of Medical Treatment Decision Maker to be witnessed remotely during the COVID-19 pandemic and these must still be witnessed face to face.

Once stage four restrictions are lifted, our team is available to meet you face to face at any of our three offices to execute your Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker. Depending on your location, we also do home visits.

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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