Powers of attorney and supportive attorneys in Victoria 

This article states the law of Victoria. The Powers of Attorney Act 2014 (Vic) provides two quite different instruments: an enduring power of attorney, under which an attorney decides for the principal, and a supportive attorney appointment, under which the decision remains the principal's own¹. The prior question in a Victorian problem is which instrument was made, because confusing them attributes to a supportive attorney a decision they had no power to make.

Principles for acting under an enduring power

Section 21 governs anyone exercising a power, carrying out a function or performing a duty under the Act for a principal who lacks decision-making capacity in relation to one or more matters.

Section 21(1) imposes two requirements on that person. They must act in a way that is "as least restrictive of the principal's ability to decide and act as is possible in the circumstances", and must ensure the principal is given practicable and appropriate support to participate in decisions affecting them as much as possible in the circumstances.

Section 21(2) then adds duties specific to an attorney making a decision on behalf of a principal who lacks capacity for that matter. The attorney must "give all practicable and appropriate effect to the principal's wishes", and must take any steps reasonably available to encourage the principal to participate in decision-making even though the principal does not have decision-making capacity.

That last obligation is easy to overlook and is doing real work. Absence of capacity does not end the duty to involve the principal; it changes only who makes the decision.

The scope and limits of an enduring power

Sections 22 and 23 provide for the making of an enduring power and who may make one. Section 24 allows conditions and instructions to be included, and s 25 prevents the attorney delegating the power. Section 26 identifies matters for which power cannot be given under an enduring power of attorney, and s 27 deals with the execution of instruments.

Sections 28 to 31 govern eligibility and the appointment of more than one attorney and of alternative attorneys. Sections 32 to 37 deal with form, execution, who may sign at the principal's direction, who may witness, the witness's certification and acceptance by the attorney — a structure comparable to the New South Wales scheme, where s 19 requires a witness certificate and s 20 requires acceptance.

The supportive attorney appointment

This is Victoria's distinctive instrument. Under s 85(1), a person may appoint an eligible person to support the person in making and giving effect to decisions, by exercising any of the powers in ss 87, 88 and 89 that the appointment specifies, in relation to personal matters, financial matters or other matters specified — excluding matters concerning medical treatment and medical research procedures.

That exclusion matters: medical treatment decision-making is dealt with under separate Victorian legislation, so a supportive attorney appointment cannot reach it.

Section 85(2) states the defining principle, and it is the provision to quote: nothing in the Act or in an appointment "should be taken as providing for the making of a supported decision that is not a decision of the principal". A supportive attorney does not decide. They support a decision that remains, in law, the principal's own. Section 85(3) confirms that an appointment cannot authorise support for illegal activity.

The three powers are conferred separately and only if specified. Section 87 is the information power: the principal may authorise the supportive attorney to access, collect or obtain from any person, or to assist the principal in obtaining, personal information about the principal that is relevant to a supported decision and that may lawfully be collected or obtained by the principal. The limit is important — the supportive attorney gets no greater access than the principal has.

Section 88 confers a communication power and s 89 confers powers as to giving effect to decisions. Sections 91 to 94 deal with eligibility, multiple and alternative supportive attorneys, and the form of appointment.

Three jurisdictions, three toolkits

The instruments available to a person planning ahead differ markedly:

• Victoria offers an enduring power of attorney and a supportive attorney appointment, and separately provides supportive guardianship and supportive administration orders through VCAT under the Guardianship and Administration Act 2019 (Vic).
• New South Wales offers an enduring power of attorney and, under its Guardianship Act 1987 (NSW), an enduring guardian — but no supportive instrument of this kind.
• South Australia offers an enduring power of attorney and, for health and personal matters, a substitute decision-maker appointed by an advance care directive.

Victoria is the only one of the three whose statutory scheme includes an instrument expressly designed to leave the decision with the person while formalising support for it. A student comparing jurisdictions should not assume the supportive attorney has an equivalent elsewhere.

Applying this in a problem question

1. Identify the instrument: enduring power of attorney or supportive attorney appointment. They are not interchangeable.
2. For a supportive attorney, apply s 85(2) — the decision is the principal's, and the appointment does not transfer decision-making.
3. Check which of the ss 87, 88 and 89 powers the appointment actually specifies; none is conferred by default.
4. For the information power, confirm the information is relevant to a supported decision and lawfully obtainable by the principal.
5. Where the matter concerns medical treatment or a medical research procedure, note that s 85(1) excludes it from a supportive attorney appointment.
6. For an attorney under an enduring power, apply s 21(2), including the duty to encourage participation despite absence of capacity.

Self-check

• Have I identified which instrument was made before asking what the appointee could do?
• Have I applied s 85(2) so that the supported decision remains the principal's?
• Have I checked which powers the appointment specifies?
• Have I applied the participation duty in s 21(2)(b) even where capacity is absent?