Enduring Powers of Attorney in Victoria: Common Mistakes to Avoid

Confusing an EPA with related instruments

An enduring power of attorney for personal or financial matters does not authorise medical treatment decisions. Medical treatment decision-making is governed by the Medical Treatment Planning and Decisions Act 2016 (Vic) and is exercised by a medical treatment decision maker appointed under that Act, or in accordance with an advance care directive. A supportive attorney appointment is separate again: the principal retains decision-making capacity and the supporter helps to obtain information, communicate decisions and put them into effect, but does not make decisions for the principal. Guardianship and administration orders are made by VCAT under the Guardianship and Administration Act 2019 (Vic) and address different criteria and procedures.

Assuming capacity from age, diagnosis or disability

Decision-making capacity is presumed and is decision-specific and time-specific. The Act requires practicable support to be provided and requires the assessment to focus on the specific matter at hand at the specific time. A diagnosis of dementia, an intellectual disability, an acquired brain injury or a mental illness is evidence to be considered but does not, by itself, determine capacity for a particular decision. A person may have capacity to appoint an attorney and not capacity to enter into a complex transaction; capacity may fluctuate. Assessments are ideally documented at the time they are made, and where any doubt exists a contemporaneous opinion from a treating practitioner or specialist can be obtained. A document signed by a principal who lacked capacity for that decision is at risk on later challenge.

Failing to use the prescribed form and process

The Powers of Attorney Act 2014 (Vic) and the Powers of Attorney Regulations 2025 (Vic) prescribe the form, execution and witnessing requirements. Two witnesses are required, at least one of whom must be an authorised witness within the meaning of the Act. Each witness must certify what the Act and form require, and each attorney must accept the appointment in writing before acting. Common issues include using an out-of-date form, taking the certification steps in the wrong order, omitting the attorney's written acceptance, using witnesses who do not fall within the authorised witness class or who do not or cannot certify what the Act requires. These issues affect validity and may be identified by banks, land-title staff and superannuation trustees rather than at the point of signing.

Getting commencement wrong

An enduring power for personal matters or financial matters may commence immediately on signing, on loss of decision- making capacity for the relevant matter or on a specified time or circumstance, to the extent the instrument and the Act support. Third parties frequently require evidence of the commencement condition (for example, evidence of loss of capacity for the matter) before acting. Failing to address commencement in the drafting, or specifying a condition that cannot be evidenced in practice, delays the attorney's ability to act when it is needed.

Choosing attorneys without regard to role and duties

The role can require ongoing attention to detail, communication with financial institutions, accountants, treating practitioners and family members, and adherence to statutory duties. It is a fiduciary role. Suitability depends on the individuals proposed, the assets and personal circumstances, the family situation and the attorney's willingness to accept the appointment in writing and to act within the Act. There is no universal rule that a substitute must always be appointed; whether an alternative appointment is appropriate depends on the circumstances and on the drafting. Where multiple attorneys are appointed, they may act jointly, jointly and severally, by majority or as the instrument otherwise allows, and the practical consequences of each option should be considered before signing.

Overlooking statutory duties in practice

An attorney appointed for personal or financial matters must act honestly, diligently and in good faith, exercise reasonable skill and care, act within authority, avoid conflict transactions unless authorised in the document or by VCAT, avoid unauthorised profit, keep records of dealings and, for financial matters, keep the principal's property separate from the attorney's own. Confidentiality obligations apply where relevant. These duties operate from the time the attorney begins to act. Mixing accounts, informal transfers within the family and absent record-keeping are conduct issues that can be raised on a VCAT application for review of an attorney's conduct.

Gifts and conflict transactions

Gifts and conflict transactions are permitted only as the Act and the instrument allow. Ambiguous provisions such as "reasonable gifts" or references to "limited allowances" that do not track the statutory language expose the attorney and the transaction. Where gifts to family members or transactions involving the attorney or the attorney's family are contemplated, they should be addressed expressly in the instrument, and only within the scope the Act permits.

Selling the principal's home

An attorney does not have authority to sell the principal's real estate merely because the attorney or a family member considers it convenient or in the principal's interests. Authority under the instrument, commencement of the power for financial matters, the statutory duties, any conflict rules, evidence of the decision-making support provided and third-party requirements (for example, of the mortgagee and Land Use Victoria) must all be considered. Where the principal has capacity to be involved in the decision, the principal should be involved to the extent practicable. In many situations independent advice for the principal is appropriate before any sale.

Revocation, resignation and cessation

While the principal has capacity, the principal may revoke an enduring appointment by executing an instrument of revocation that complies with the Act and by giving notice. The appointment also ends on the principal's death, on the attorney's death or resignation, on the attorney's loss of capacity, and (for financial matters) on the attorney's bankruptcy where the Act so provides; VCAT orders may also affect continuation. Third parties who deal with the attorney in good faith without knowledge of the ending are protected within the terms the Act sets out. Notifying attorneys, banks, Centrelink, the ATO and other institutions that hold or deal with the principal's property is important.

When VCAT may become involved

VCAT has jurisdiction under the Powers of Attorney Act 2014 (Vic) to make declarations about validity and capacity, give advice or directions to attorneys, require the attorney to lodge accounts, vary or revoke the appointment, appoint a new attorney, and order compensation where the principal has suffered loss caused by the attorney's contravention. The remedy depends on the evidence and the statutory test. Applications may be made by the principal, by an attorney, by an interested person or in some circumstances by VCAT of its own motion. Related instruments — guardianship or administration under the Guardianship and Administration Act 2019 (Vic) — may need to be considered together where the same circumstances are in issue.

Coordinating with the wider plan

An enduring power of attorney is one part of a personal legal plan. It may be prepared with a Will, a medical treatment decision maker appointment and, where appropriate, an advance care directive. See our companion guide to powers of attorney in Victoria for an overview of the framework, and to revoking an enduring power of attorney for the mechanics of ending an appointment. Advice tailored to the family, asset and capacity situation is important; our powers of attorney and elder law practice can assist.

Frequently asked questions