What Steps Do You Need To Take To Commence Acting As a Power of Attorney

It can be a very difficult and stressful time when someone ‘loses capacity’.

Under the Power of Attorney Act 2014, to lose capacity means to lose the ability to make decisions and to have a clear understanding of the decision and what it means.  This in particular can relate to medical or financial situations.

Once someone loses capacity and they have an Enduring Power of Attorney (Financial) or Appointment of Medical Treatment Decision Maker, the attorney/s can then act to make decisions on behalf of the Appointment Maker.

In order for an attorney/s to act, they will require a certified copy of the Power of Attorney or Appointment of Medical Treatment Decision Maker to prove they are now entitled to act.

However, before we can hand over a certified copy of either of these documents to an attorney, we must have evidence to confirm that the Principal (or person making the Power of Attorney) has in fact lost capacity.  This is the case even if the appointment commences immediately upon the signing and acceptance of the Power of Attorney or Appointment of Medical Treatment Decision Maker.

In order to confirm someone has lost capacity, we will generally require a signed letter from a registered doctor or medical professional confirming that in their opinion the Principal no longer has capacity.

In some circumstances, the Principal may instruct that the appointment only commences upon confirmation from two medical professionals that they no longer have capacity.  In this case we will require a letter from two different medical professionals confirming this.

Whilst we understand that this is not always an easy process in such a difficult time, it is a requirement that these documents are provided to us before we can provide any certified copies.

We have to ensure we act with due diligence to protect the Principal from somebody obtaining access to such a powerful document that would allow them to take over their decision making.  The original document such as Enduring Power of Attorney or Appointment of Medical Treatment Decision Maker, is held by us on trust for the Principal.  Therefore, we cannot hand it to anyone else.  It is the Principal’s document.

If you are an attorney for someone who has lost capacity and unsure what step you need to take next, contact us today on 03 9707 1155.