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Enduring Power of Attorney frequently asked questions

Who should I choose as the attorney?

Who you choose as your attorney is up to you. It may be your spouse or de facto partner, another family member or close friend, an accountant, lawyer or a trustee company. No more than two people can be attorneys at any one time. When choosing an attorney, the Public Advocate recommends you give careful consideration to the following questions:

  • Is the person 18 years of age or older?
  • Is the person trustworthy and likely to act in my best interests?
  • Is the person willing to take on the responsibilities?
  • Is the person competent to deal with all financial and property matters relating to my estate?
  • Is the person competent to take on the task of keeping and preserving accurate records and accounts of all dealings and transactions made under the enduring power of attorney?
  • Does the person live close enough to me to be able to discharge his or her responsibilities under the enduring power of attorney?
  • Could the choice of attorney create conflict within the family?
  • Should conditions or restrictions be placed upon the attorney?

Can a person with a decision-making disability make an enduring power of attorney?

To be able to make an enduring power of attorney the adult must have ‘full legal capacity’. This means the person must know and understand:

  • the nature and extent of their own estate (land, property and financial assets)
  • that an enduring power of attorney will give the attorney complete authority to deal with all aspects of their property and financial affairs (provided that such dealings are in the interests of the person making the enduring power of attorney).

Adults with impaired decision-making abilities, such as those with a psychiatric condition, dementia, an intellectual disability or an acquired brain injury may not be able to execute an enduring power of attorney.

In the case of people with a mental illness, the issue of capacity can be complex particularly if their ability to make reasoned decisions fluctuates with the severity of their illness.

Any doubt about the person’s capacity to make the document could result in the State Administrative Tribunal finding the enduring power of attorney has not been properly made, and as a consequence it could be revoked.

What should I do if there is doubt about my capacity to make an enduring power of attorney?

If you are considering making an enduring power of attorney but your capacity to do so might be questioned, you are advised to seek the opinion of at least one doctor qualified to assess your capacity and to determine if you are able to make the document.

There is no specific capacity assessment in relation to an enduring power of attorney and it will be up to the health professional assessing your capacity to decide which test is suitable.

When seeking this opinion, you should advise the doctor of your intention to make an enduring power of attorney and request a written report of the assessment which clearly states whether or not you have capacity.

If you require an assessment of your capacity and English is not your first language, it is recommended you have an accredited interpreter attend the assessment with you.

If you are assessed as having full legal capacity it is advisable that:

  • the doctor who made the assessment be one of the two people who witnesses your enduring power of attorney
  • you make the enduring power of attorney as soon as possible after having the capacity assessment
  • you keep the copy of the doctor’s assessment of your capacity with the enduring power of attorney to ensure everyone is aware you had capacity to make it.

If you are assessed as not having capacity, you will be unable to make an enduring power of attorney.

I know I have a condition which means I lose capacity at times, but then regain capacity. What will happen if I make an enduring power of attorney?

In some situations someone’s ability to make reasoned decisions may fluctuate depending on the severity of their condition, for example if the person has a mental illness. In these circumstances, your attorney is able to assume decision-making responsibility during times when you are unable to make decisions for yourself, and then when you recover your attorney will stop making decisions as you are able to make these for yourself.

If this is a situation which you might be in, this is something which could be clarified in the directions of your enduring power of attorney. For example, you might include the direction: “I have been diagnosed with clinical depression and want my attorney to act when my doctor states I lack capacity.”

What happens if there is doubt over my capacity to continue making decisions for myself?

If there is uncertainty over your capacity to make decisions for yourself, your general practitioner should be asked to make an assessment of your capacity or to provide a referral to an appropriate specialist for an assessment of your capacity.

If the situation is still unclear, an application should be made to the State Administrative Tribunal for a decision about your capacity.

In some cases the State Administrative Tribunal might decide that while you are still capable of making certain types of decisions, you are no longer able to make reasoned judgements about other aspects of your life. For example, the State Administrative Tribunal may decide that you are capable of managing an aged care pension but not of managing the sale of property and investing the profits of that sale.

When does an enduring power of attorney come into effect?

The donor (person making the enduring power of attorney) must decide whether the enduring power of attorney will come into effect immediately or in the event they lose capacity.

If they choose for it to come into effect only if they lose capacity, an application will need to be made to the State Administrative Tribunal to confirm loss of capacity and declare the enduring power of attorney is in force.

What authority does an attorney have?

An attorney has authority, depending on the terms of the enduring power of attorney, to manage the donor's financial and property affairs in the donor's best interests.

An attorney does not have the authority to:

  • make a will on behalf of the donor
  • make personal, lifestyle or treatment decisions (for example, accommodation decisions)
  • do any act which is illegal
  • deal with any property held in trust by the donor (governed by Trust deed)
  • perform the functions of a director or secretary of a company on behalf of the donor unless authorised by the constitution of the company
  • delegate their authority.

Who can witness an enduring power of attorney?

In Western Australia, an enduring power of attorney must be signed by the person making the enduring power of attorney in the presence of two independent witnesses.

Both witnesses must be 18 years of age or older and have full legal capacity. At least one of the two witnesses must be a person authorised to witness documents under the Oaths, Affidavits and Statutory Declarations Act 2005.

What can I do if I am unable to sign an enduring power of attorney?

Special provisions apply where a person executing an enduring power of attorney is unable to sign their name because they:

  • understand English but cannot write
  • understand English but cannot read or write
  • do not understand English and cannot write
  • do not understand English but can write.

A mark of any kind by that person, including an initial, cross or even a thumb print will suffice, provided an appropriate explanatory clause is inserted into the enduring power of attorney. These clauses are called "marksman" or "read-over" clauses. It is advisable to seek legal assistance (from a solicitor or community legal centre), to prepare an enduring power of attorney which incorporates such a clause.

Do I have to register my enduring power of attorney?

There is no need to register an enduring power of attorney in Western Australia. However if the donor owns land or property, they may want to consider lodging their enduring power of attorney with Landgate.

For individuals seeking to lodge an enduring power of attorney with Landgate please note that there is a fee charged and Landgate has some specific requirements, including that you lodge an original of the document and that it be lodged within three months of when it was made. If you wish to lodge your enduring power of attorney after three months, a statutory declaration will also be required. It is recommended that you contact Landgate for their specific requirements for the statutory declaration.

Therefore if you want to lodge your enduring power of attorney with Landgate, you should make two originals at the time of completing your enduring power of attorney. This will enable you to keep an original yourself, and lodge the other original with Landgate.

How can I revoke my enduring power of attorney?

Provided the donor still has legal capacity, they can revoke an enduring power of attorney at any time.

A donor revoking an enduring power of attorney should inform their attorney and all other relevant people and agencies, preferably in writing. Also, they should keep a copy of the written revocation together with a list of all of the people and agencies to whom it has been sent.

If the enduring power of attorney was lodged with Landgate, the donor would need to lodge a formal revocation with Landgate, for which a fee will be charged. For more information on Landgate’s requirements for revoking an enduring power of attorney which has been lodged with them, you should contact Landgate.

What happens where there is no enduring power of attorney?

Where a person has not made an enduring power of attorney and there is concern about their decision-making ability in respect of property and financial management, any person may lodge an application with the State Administrative Tribunal for an administrator to be appointed.

An Advisory Officer from the Office of the Public Advocate’s Telephone Advisory Service may provide advice about the need for the appointment of an administrator and how to apply for such an order. Alternatively, an application may be made directly to the State Administrative Tribunal.

The administrator must submit annual records to the Public Trustee of all transactions for auditing purposes, unless exempted from doing so by the Public Trustee.

The Public Trustee has a private administrator's support team that can provide information about its reporting requirements where an administrator has been appointed.

See Administration for more information.

What if I reside in Western Australia but have assets outside the State?

The Public Advocate recommends that Western Australian residents with assets outside the State seek legal advice as to whether a Western Australian enduring power of attorney is recognised in the jurisdiction where the assets are held and, if not, whether they are entitled to execute an enduring power of attorney under the laws of that jurisdiction. Witnessing requirements vary between jurisdictions.

For people living outside Western Australia but with assets in this State, the Public Advocate recommends that a Western Australian enduring power of attorney is executed.

Do I continue in my role as attorney if the person who appointed me dies?

No, an enduring power of attorney ends on the death of the donor. This means your role as attorney ends immediately on the death of the donor. At this point the provisions of the person’s Will take over.

It would be expected that you secure the estate of the person and hand over relevant documents to the executor of the Will. If you are the executor of the person’s Will your function in finalising the estate is as the executor and not as the attorney.

Where can I find the Enduring Power of Attorney form in a version I can type into?

The format for the Enduring Power of Attorney form is contained within the Guardianship and Administration Act 1990 Schedule 3, which can be found at the State Law Publisher's website where it can be downloaded as a word document.

What happens if I divorce or separate from the person I appointed as my attorney?

Separation or divorce will not affect the validity of an Enduring Power of Attorney.

A donor who wants their Enduring Power of Attorney to continue, does not need to take any action.

A donor who no longer wants their former spouse or de facto partner to be their attorney, will need to revoke the Enduring Power of Attorney.

If the parties have separated or divorced and the donor does not have capacity, an interested party may apply to the Tribunal for a decision on whether the Enduring Power of Attorney should continue to operate.

If I get married or start a de facto relationship, does my existing enduring power of attorney become invalid?

No. Marriage or a de facto relationship does not affect the validity of an Enduring Power of Attorney.

A donor who gets married or starts a de facto relationship, but wants their existing Enduring Power of Attorney to continue, does not need to take any action.

A donor who wants their spouse or de facto partner to be their attorney, rather than the person/s they previously appointed in an Enduring Power of Attorney, will need to revoke the Enduring Power of Attorney and make a new Enduring Power of Attorney appointing their spouse or de facto partner.

Last updated: 1-Dec-2016

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