Getting Power of Attorney for a Parent with Dementia in Victoria

A Dementia Diagnosis Doesn't Automatically Disqualify

A diagnosis of early-stage dementia does not, by itself, prevent someone from creating a valid enduring power of attorney (EPA) in Victoria. Under the Powers of Attorney Act 2014 (Vic), what matters is whether the person has decision-making capacity at the specific moment they sign — not whether they carry a diagnosis.

Decision-making capacity in Victoria means the person can:

• Understand the information relevant to the decision
• Retain that information long enough to make the decision
• Use or weigh the information to reach a decision
• Communicate the decision in some way

Capacity is presumed unless evidence suggests otherwise. It's also decision-specific and time-specific — a person might have capacity to make some decisions but not others, and capacity can fluctuate from day to day. A parent with early-stage Alzheimer's who has good days and bad days may well have capacity to execute an EPA on a good day.

The critical point: once dementia has progressed to the point where the person can no longer understand what an EPA is, what powers it grants, and who they're appointing, the window has closed permanently. You cannot create an EPA on behalf of someone else — only the principal themselves can do it.

Getting a Capacity Assessment

If there's any doubt about whether your parent has sufficient capacity, arrange a formal assessment before signing. This step is optional but strongly recommended when dementia has been diagnosed, because it protects the EPA against future challenges.

Without an assessment, a disgruntled family member or institution could later argue that your parent lacked capacity at the time of signing, which would invalidate the entire document. A contemporaneous medical assessment makes that challenge much harder to sustain.

Who performs the assessment:

• A registered medical practitioner — typically your parent's GP or a geriatrician
• For complex cases, a neuropsychologist or psychogeriatrician may be more appropriate

The assessment should confirm that the person understood, at the time of the assessment:

• What an enduring power of attorney is
• What powers they're granting (financial, personal, or both)
• Who they're appointing as attorney
• When the powers will activate (immediately or upon incapacity)
• That they can revoke the EPA while they still have capacity

Ask the practitioner to document their findings in a written report, dated the same day as (or very close to) the signing of the EPA. Keep this report with the original EPA — it's your evidence of valid execution.

Timing Matters: The Capacity Window

Dementia is progressive. The capacity window gets narrower over time, and the legal consequences of missing it are severe.

If you act while capacity exists:

• Your parent can choose their own attorney — someone they trust
• They can set conditions and limitations on the attorney's powers
• They can specify preferences for their care, living arrangements, and finances
• The process costs the price of the forms (free from OPA) plus any witnessing and certification fees

If capacity has already been lost:

• An EPA cannot be created
• The only option is a VCAT guardianship or administration order
• The application requires a detailed medical report from the last three months, using a specific VCAT template
• The process takes three to six months
• VCAT decides who gets appointed — it might be a family member, or it might be State Trustees
• State Trustees charge commission rates of up to 5.5% on property and assets, and hourly rates between $216 and $363
• Guardianship orders are reviewed every three years; administration orders every year

The difference between acting early and acting late is the difference between a family choosing its own arrangements and a tribunal imposing arrangements on the family.

What If Your Parent Refuses?

Resistance is common. A parent with early dementia may be in denial about their condition, defensive about their independence, or frightened about losing control. They may also have intermittent awareness of their decline, which makes the conversation harder, not easier.

Approaches that help:

• Frame it as mutual — "Let's both do our EPAs at the same time. I'm doing mine too."
• Use a GP as an ally — if the parent trusts their doctor, a gentle recommendation from the GP can break through resistance that family pressure can't
• Focus on specific fears — if they're worried about losing control of their money, explain that the EPA can be set to activate only upon incapacity and can include specific limitations
• Name the alternative — without an EPA, the government decides. VCAT may appoint State Trustees instead of a family member. That's usually a more sobering prospect than signing a document now.

You cannot force a parent to sign an EPA. The appointment must be voluntary, and any evidence of coercion could invalidate the document. But you can make the case clearly and give them time to process it.

If a parent with full capacity consistently refuses, that is their right. Document the refusal (a note to yourself with the date and context) so that if a VCAT application is later needed, the family can demonstrate they tried to set up planning while capacity existed.

The Three Documents Your Parent Needs

Victoria's dual-statute framework means a single EPA doesn't cover everything. For comprehensive protection:

1. Enduring Power of Attorney — financial and personal decisions, under the Powers of Attorney Act 2014
2. Medical Treatment Decision Maker appointment — healthcare decisions, under the Medical Treatment Planning and Decisions Act 2016
3. Advance Care Directive — your parent's own healthcare preferences, documented while they can still express them. The instructional directive component is legally binding on health practitioners.

Each document has different witnessing requirements. The EPA needs two witnesses (one authorised affidavit witness or medical practitioner). The MTDM and ACD each require one witness to be a registered medical practitioner. Remote witnessing via audio-visual link is available for EPAs but prohibited for MTDM and ACD forms.

Given the time sensitivity with dementia, it makes sense to prepare and execute all three at once — ideally coordinated so the GP who performs the capacity assessment can also serve as the medical witness.

The Victoria Power of Attorney Kit includes a capacity assessment checklist, separate witnessing protocols for each document type, and practical guidance for navigating the conversation with a reluctant parent.

See more Victoria guides →