How to Choose the Right Structure for your Power of Attorney
In this month’s blog, Principal Lawyer, Gabrielle McManus and Managing Lawyer, Taylah Hollands explore how Powers of Attorney can unravel when multiple attorneys are appointed, and what thoughtful planning can do to prevent conflict before it starts.
Why this decision matters more than you think
As Australians live longer, and conditions like dementia and age-related illness become more common, planning ahead is no longer optional. Preparing for a time when you may not be able to make decisions for yourself is now a core part of sensible legal planning.
In Victoria, an Enduring Power of Attorney allows you (the principal) to appoint someone you trust (an attorney) to make financial and personal decisions if you lose capacity. Many people choose to appoint more than one attorney - often adult children, siblings, or a mix of family members.
While this can feel fair and practical, how those attorneys are allowed to act, together or independently, is crucial.
These documents are usually relied on during periods of stress, illness or urgency. If the appointment isn’t set up properly, it can lead to delays, confusion, family conflict, or even outside intervention to resolve disputes.
Taking the time to get this right now can spare your loved ones significant stress later - and ensure your wishes are followed when it matters most.
Common myths about Powers of Attorney
Many people put off reviewing or updating their Powers of Attorney because of a few common assumptions:
“My family will work it out when the time comes”
“Joint appointments are the fairest option”
“I can deal with this later”
“It only matters when I’m very old”
In reality, Powers of Attorney often come into effect earlier than people expect, and what seem like small drafting choices can have serious, unintended consequences.
Without the right plans in place, your loved ones may be forced to apply to the Victorian Civil and Administrative Tribunal (VCAT) to sort out decision-making for your financial and personal affairs, often at an already stressful time.
Case study: Re VIJ (Guardianship) [2020] VCAT 760
What happened
- A father appointed his three daughters as joint attorneys under an Enduring Power of Attorney.
- After a diagnosis of dementia, he lost decision-making capacity.
- The daughters could not agree, leading to delays and dysfunction in managing his affairs.
VCAT’s response
- VCAT suspended the Enduring Power of Attorney.
- The two eldest daughters were appointed jointly and severally under an Administration Order.
- They were required to provide annual financial records to the youngest daughter to ensure transparency.
Why this matters
This case shows that equal treatment doesn’t always lead to effective decision-making. While the father sought fairness, requiring unanimity meant decisions stalled when agreement broke down.
Key takeaway
A Power of Attorney should be structured to work when relationships are under pressure — not rely on family harmony.
The practical problems we see most often
We often see Powers of Attorney that were signed years ago with the best intentions, but create real, practical problems when they’re actually needed.
Some common scenarios include:
Two children appointed jointly, where one lives interstate or overseas
An intimate partner appointed, but without authority to use the principal’s assets for their own benefit
Parents appointing “all the kids” out of fairness, without considering how well they’ll work together
When capacity is lost, time is usually critical. If attorneys can’t act quickly or cooperatively, families can face delays, extra costs, and emotional strain - at exactly the moment they’re least able to cope.
How multiple attorneys can be structured
When you appoint more than one attorney, there are four main ways to set up their authority. Each option has its own benefits and risks.
| Authority Type | How Decisions Are Made | How Documents Must Be Signed | Key Feature | Key Drawbacks |
|---|---|---|---|---|
| Jointly | All attorneys must agree unanimously | All attorneys must sign | Requires complete consensus and collective action |
|
| Severally | Any one attorney may act alone | A single attorney may sign alone | Maximum flexibility — each attorney has independent authority |
|
| Jointly & Severally |
(a) All attorneys agree; (b) One or more attorneys may act alone or together |
(a) All sign; (b) One attorney signs alone or multiple agreeing attorneys sign |
Hybrid model — attorneys can act together or individually |
|
| By Majority | A majority of attorneys must agree | The majority of agreeing attorneys must sign | Decisions are made by majority rule, not unanimity |
|
Choosing the right structure for your Power of Attorney
There’s no one-size-fits-all answer. The right structure depends on your family dynamics, the personalities involved, and how decisions are likely to be made in real life.
Joint appointments may suit couples or co-attorneys who always act together and are consistently available.
Several appointments can work where one attorney needs to act efficiently, with others appointed as safeguards.
Joint and several appointments often suit families who communicate openly and respect each other’s roles.
By majority may suit larger families where no single person should hold all decision-making power.
What matters most is choosing a structure that will still work under pressure, not just one that looks fair on paper.
How conditions can reduce risk and conflict
Where attorneys are appointed jointly and severally, carefully drafted conditions can help reduce the risk of conflict or misunderstanding.
These conditions can be tailored to your situation and may include:
Notifying each other before selling real estate
Consulting each other before making gifts over a set value
Making major financial decisions jointly
Consulting before significant personal or health decisions
Used well, these safeguards balance flexibility with accountability and help reduce the risk of decision-making powers being misused.
How we can help
A Power of Attorney isn’t just about who you appoint - it’s about how those people can act when it matters most.
Our experienced succession lawyers take the time to understand:
your family dynamics
how decisions are likely to be made in practice
your future needs
We provide clear, practical advice and draft documents designed to reduce stress and minimise conflict.
If you’re appointing attorneys for the first time, or you’re unsure whether your current document still works for you, a legal check-up now can provide peace of mind, and help avoid serious difficulties later.
Contact us today on (03) 9318 4188 or book an appointment to speak with us about your circumstances.