What is a Power of Attorney?
An Enduring Power of Attorney (‘EPA’) is a legal document that allows you to appoint someone you trust to make property and financial decisions on your behalf, in case you are unable to make those decisions yourself. The types of things an Enduring Attorney can assist you with include matters such as banking, paying bills, managing your assets, and conducting land transactions on your behalf.
Unlike a regular Power of Attorney, an EPA will continue to be effective even after you lose the capacity to make decisions for yourself.[1] This is why it is called enduring!
What if I don’t have an EPA?
If you lose capacity and have not yet appointed an Enduring Attorney, the State Administrative Tribunal (‘SAT’) will appoint an administrator for your financial matters on your behalf. This could be a family member or close friend, but SAT may also appoint someone else, such as the Public Trustee. Typically, this involves legal proceedings which can be complicated and frustrating for your family or friends during an already difficult time. Making an EPA is the best way to make sure the person looking after you is the person you want.
If I make an EPA and I am still capable, can I still make my own decisions?
Absolutely! When you make an EPA, you can choose when you would like your Attorney’s powers to come into effect:
- Immediately – this means that as soon as you sign your EPA document, your Attorney can make decisions on your behalf. If you are still capable, this usually means your Attorney can help out where needed, or simply wait until you need their help.
- Upon your incapacity – this is not an automatic process. Once you lose capacity, your Attorney will need to apply to SAT for a declaration under the Guardianship and Administration Act 1990 (WA)[2] that you do not have legal capacity. Once that declaration is granted, your Attorney can make decisions on your behalf.
What are the first steps?
Understandably, giving someone else the authority to manage your finances is a big decision and your choice of attorney is crucial. You should make sure you appoint someone you know well and trust entirely.
You can appoint up to 2 Attorneys. It is also a good idea to appoint at least one alternate (backup) Attorney,[3] in case your first choice is unavailable due to death or disability. You can appoint:
- One person as your sole Attorney;
- Two people who must work together and agree on all decisions, as joint Attorneys; or
- Two people who can make decisions together and/or independently, as joint and several attorneys.
If you appoint multiple Attorneys, you should consider whether they will be able to work together harmoniously to manage your property and financial affairs.
What if things go wrong?
Obviously, it is best to pick the right person from the outset. However, sometimes things don’t work out exactly how we plan them.
The Guardianship and Administration Act 1990 (WA)[4] imposes various duties on Attorneys. These duties include protecting your interests, keeping records and accounts, and reporting bankruptcy to SAT. In some cases, an Attorney can be personally liable to their Appointor for any wrongdoing.[5]
If there is any reason to believe an Attorney might not be acting properly, a person with “a proper interest in the matter” can apply to SAT for orders including to:
- Compel the Attorney to file accounts and records of any transactions they have made on your behalf;
- Audit those records and provide a report; and/or
- Revoke the EPA, or appoint the substitute Attorney.[6]
What is Landgate Registration?
Landgate is the government authority that oversees all titles to land in Western Australia. Until your EPA is registered at Landgate, your Attorney will not be able to deal with your land.
Usually, you can register your EPA with Landgate within 3 months of the date of execution. However, you can also do it outside of that time frame if necessary. This is a bit trickier and more expensive though, as it involves filing extra documentation. The Registrar of Titles will then retain a copy of your EPA as part of their permanent records.
At Peel Legal we recommend that if you own land, you should register your EPA with Landgate. This will make it as quick, easy, and inexpensive as possible for your Attorney to help you, if they ever need to.
See also
Further information on Enduring Powers of Attorney can be found at:
Landgate – POA01 Powers of Attorney
WA Government – Enduring Power of Attorney
WA Government – A Guide to Enduring Power of Attorney In Western Australia (PDF)
[1] Guardianship and Administration Act 1990 (WA) s 105
[2] Section 106
[3] Guardianship and Administration Act 1990 (WA) s 104B
[4] Section 107
[5] Guardianship and Administration Act 1990 (WA) s 107(1)
[6] Guardianship and Administration Act 1990 (WA) s 109
