WA

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WA Enduring Power of Attorney

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The right to make decisions and manage our affairs is a fundamental human right, yet circumstances sometimes mean people lose the capacity to do so due to dementia, mental illness, accident or trauma.

An Enduring Power of Attorney (EPA) is a formal agreement that a person enters into by choice. It allows people to appoint a trusted person, or people, to make financial and property decisions on their behalf. An EPA can be executed by anyone who is over 18 and has full legal capacity.

‘Full legal capacity’ in this situation means that the person must be able to understand the nature and effect of the document they are completing, and understand the nature and extent of their estate.

An EPA cannot be made by another person on behalf of a donor whose capacity might be in doubt due to mental illness, acquired brain injury, cognitive impairment or dementia.

An EPA can be operational while the person still has capacity but may be physically unable to attend to financial matters.

The benefit of an Enduring Power of Attorney is that unlike an ordinary Power of Attorney it continues to operate when the donor loses full legal capacity.

An EPA does not permit an attorney to make personal and lifestyle decisions, including decisions about medical treatment. The authority of the attorney is limited to making decisions about the donor’s financial affairs and property.

An EPA is legally binding and must be revoked by the donor or the State Administrative Tribunal to be considered null and void.

The Public Trustee can be appointed enduring attorney.

Government Rules

Part 9 of the Guardianship and Administration Act 1990 sets out the rules governing the execution of an Enduring Power of Attorney (EPA). As with the development of a last will and testament, WA law considers an EPA to be a private arrangement and no formal registration of the document is required.

However, if the person owns land or property the EPA must be lodged with Landgate.

If there is any doubt about capacity to execute an EPA, the Public Advocate recommends that the donor seek the opinion of at least one doctor qualified to assess capacity prior to completing an EPA. The doctor should be advised of the donor’s intention to execute an EPA and requested to provide a report in writing.

Where English is not the donor’s first language, the Public Advocate recommends the use of an accredited interpreter during the assessment of capacity. The telephone interpreter service can be contacted on 131450.

Benefits of an EPA

The execution of an Enduring Power of Attorney (EPA) enables the donor to:

* choose a trusted person (the attorney) to manage his or her property and finances immediately or in the event of loss of capacity
* safeguard their best interests should they lose capacity to make reasoned decisions
* provide for continuity of management of their financial and property affairs, thereby minimising immediate financial hardship, if for any reason they are unable to manage their financial affairs
* impose conditions or restrictions on the exercise of the power based on their wishes for the management of their estate
* maintain confidentiality in respect of their financial and property affairs.

If a donor chooses to have their EPA take immediate effect, it will not be necessary for the attorney to make an application to the State Administrative Tribunal for an order of legal incapacity, to bring the EPA into effect.

How to get an EPA Kit

EPA kits and guides are available for a minimal cost from the State Law Publisher:

10 William Street, Perth.  Phone 9321 7688

EPA forms, kits and guides can also be downloaded free of charge on this website.
Telephone Advisory Service

The Public Advocate provides an information service that answers a range of common questions about EPAs.

The Telephone Advisory Service can be accessed 24 hours a day, seven days a week, by calling 1300 858 455 (free call).

Questions and Answers

Who should I choose as the attorney?

The person/s you choose to appoint as your attorney/s is up to you. It may be your spouse or 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 that the donor give careful consideration to the following questions:

* Is the person trustworthy and likely to always 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 EPA?
* Does the person live close enough to me to be able to discharge his or her responsibilities under the EPA?
* 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 execute an EPA?

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 EPA.

In the case of people with a mental illness, the issue of capacity becomes more complex, as their ability to make reasoned decisions for themselves may fluctuate from time to time in line with their illness.

In determining capacity to execute an EPA, the person should see a doctor, psychiatrist, geriatrician, or psychologist, relevant to their diagnosis who is able to conduct a capacity assessment in relation to the execution of the EPA.

To be considered to have legal capacity, a person must know and understand:

* the nature and extent of their own estate (land, property, financial assets)
* that an EPA will give the attorney complete authority to deal with their estate (provided that such dealings are consistent with the interests of the donor of the power)

When does an EPA come into effect?

The donor can choose whether the EPA comes into effect immediately or in the event that they lose capacity.

If they choose for the EPA to come into effect in the event they lose capacity, an application will need to be made to the State Administrative Tribunal to confirm loss of capacity and declare the EPA in force.

What authority does an attorney have?

An attorney has authority, depending on the terms of the EPA, 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 guardianship or lifestyle 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 EPA?

In Western Australia, an EPA must be signed by the person giving the power in the presence of two independent witnesses. The witnesses can be justices of the peace and others listed in the Oaths and Affidavits and Statutory Declarations Act 2005 including medical practitioners, officers of the State and Commonwealth public service and police officers. A full list of authorised witnesses is included in the EPA kit.

What can I do if I am unable to sign an EPA?

Special provisions apply where a person executing an EPA 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, providing an appropriate explanatory clause is inserted into the EPA. 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 EPA which incorporates such a clause.

Do I have to register my EPA?

There is no need to register an EPA in Western Australia. However if the donor owns land or property two EPA forms with original signatures should be lodged with Landgate as soon as possible after the EPA is signed.

How can I revoke my EPA?

Providing the donor still has legal capacity, they can revoke an EPA at any time. If the donor no longer wants the EPA to apply, they should inform their attorney and all other relevant people and agencies, preferably in writing. The donor should keep a copy of the written revocation together with a list of all of the people and agencies it has been sent to.

If the EPA was lodged with Landgate, the donor will need to lodge a formal revocation for which a fee will be charged. For more information contact Landgate.

What happens where there is no EPA?

Where a person has not executed an EPA 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. The Telephone Advisory Service of the Office of the Public Advocate 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 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.

What if I reside in WA but have assets outside WA?

The Public Advocate recommends that WA residents with assets outside the State seek legal advice as to whether a Western Australian EPA is recognised in the jurisdiction where the assets are held and if not, whether they are entitled to execute an EPA under the laws of that jurisdiction. There is some variation in witnessing requirements between jurisdictions.

For people living outside WA but with assets in this State, the Public Advocate recommends that a Western Australian EPA is executed.

Acknowledgements:

This article courtesy of  the WA Government site on Enduring Power of Attorney.

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