Supportive attorney
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The ‘supportive attorney’ appointment is designed to support a principal to make decisions for themselves. This is in line with Article 12 (equal recognition before the law) of the Convention on the Rights of Persons with Disabilities, which says:
parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
The principal may give their supportive attorney three sorts of powers:
to support the principal to obtain information (POA Act s 87);
to support the principal to communicate (POA Act s 88); and
to support the principal to give effect to their decisions (POA Act s 89).
For example, a principal would like to go on holidays overseas, but finds it difficult to obtain information about getting a passport, arranging visas, and finding out where to stay. Arranging a passport requires obtaining documents (e.g. proof of identity), disclosing information, and paying fees. The principal may need support to do these things and may appoint a supportive attorney to help. A core legal concept is that the decisions are those of the principal, and not of the supportive attorney (POA Act s 86).
The person appointing a supportive attorney must have the capacity to decide to do so and the capacity to make decisions for which the support is sought (POA Act ss 85–86). (See section 4 of the POA Act for the meaning of decision-making capacity.)
A supportive attorney can be appointed for financial or personal matters. Since the commencement of the MTPD Act, a supportive attorney cannot be appointed in relation to medical treatment and medical research procedures. The MTPD Act enables the appointment of a support person to perform the role in relation to these matters.
There are limits on who can be appointed. The supportive attorney must be over 18 years old, must not be insolvent, and must not have been found guilty of a dishonesty offence (see POA Act s 91). There can be more than one supportive attorney appointed and, if so, they can act separately (POA Act s 92). There is scope for alternative supportive attorneys (s 93 POA Act).
The duties of the supportive attorney are set out in section 90 of the POA Act. In essence, these duties emphasise the importance of the supportive attorney’s integrity. The authority does not extend to supporting the principal to make decisions about significant financial transactions (which are defined) (POA Act s 89).
The form for appointing a supportive attorney can be downloaded from the OPA’s website (www.publicadvocate.vic.gov.au).
The appointment may be revoked by the principal at any time. It will also be revoked if the principal ceases to have the capacity to make decisions. The power is revoked by the principal’s death, the attorney’s death, the attorney becoming insolvent or becoming a care worker or provider for the principal, or the attorney is convicted of a dishonesty offence. The supportive attorney can resign (see POA Act pt 7 div 5).
VCAT has a role similar to that set out above for enduring powers of attorney to oversee the validity and operation of the power of supportive attorney.
Supportive attorney
Chapter: 8.6: Understanding powers of attorney
Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate
Current as of: 1 September 2024
Law Handbook Page: 776
Next Section: Enduring power of attorney (medical)
