Enduring Power of Attorney (“EPA”) – What is it? And why is it important for you?

What is an Enduring Power of Attorney?

• An Enduring Power of Attorney is a legal document which allows you (the Donor) to appoint one or more persons (an Attorney) to make financial and property decisions on your behalf if you become unable to do so or in certain nominated circumstances.
• EPAs can come into effect immediately or only when there is in existence a declaration from the State Administrative Tribunal (SAT) that the Donor does not have capacity.
• A maximum of 2 Attorneys can be appointed – however substitute Attorneys can also be appointed.

In Western Australia, Enduring Powers of Attorney (EPAs) are governed by the Guardianship and Administration Act 1990 (WA) (“Act”).

It is important to note that EPAs made in other Australian jurisdictions need to be approved by the State Administrative Tribunal (“SAT”) to be used in Western Australia.

Components of an Enduring Power of Attorney.

Enduring Power of Attorneys in Western Australia have four specific components which must all be complete:

• The appointment;
• The authorisation;
• The scope of authority specified by the Donor; and
• The signed and dated acceptance by the Attorney.

Requirements of an Attorney acting on your behalf.

To be eligible to act as an Attorney under an EPA in Western Australia, the Attorney must:

• Be at least 18 years;
• Not be a paid carer or health provider for the Donor;
• Not be a service provider for a residential service where the principal is a resident; and
• If appointed for financial matters, not be bankrupt or taking advantage as a debtor under Bankruptcy.

Importance of Choosing Attorneys Carefully.

Attorney/s must act in the best interests of the Donor. It is important that you choose your Attorney/s carefully as they will be entrusted with managing your financial and property affairs.

Generally, the State Administrative Tribunal has jurisdiction to intervene if there is concern about the Attorney being in breach of their duties to the Donor.

What happens if there is no Enduring Power of Attorney in place?

If there is no valid EPA, an Administration Order will need to be sought by application to SAT.

It is preferable for most people to secure control over who would make decisions on their behalf, rather than allow the decision to be made on their behalf by way of administration order after capacity is lost.

Requirements for Landgate and property involvement.

It is important to note that EPAs must be registered with Landgate for the appointed attorney to be able to deal with the real property of the Donor. EPAs should be registered within 3 months of execution – if lodged later than 3 months, a statutory declaration is required confirming that the EPA is still in effect.