Enduring Power of Attorney

Many decision-making disabilities are caused by illness, accident or trauma. There is no way of knowing if or when any of us will lose the capacity to make decisions for ourselves, or be physically unable to attend to property and financial matters.

By making an EPA you can authorise a person/s (or organisation), who you know and trust, to make property and financial decisions for you in your best interests, in case you lose capacity or are physically unable to manage your finances.

If you lose capacity to make decisions about your property and finances and you have not made an Enduring Power of Attorney, there may be no one with the legal authority to manage your financial affairs. This may mean a family member or someone else involved in your life needs to apply to the Tribunal to have someone appointed to take on this role (also known as an administrator). The Tribunal might appoint a family member or friend as your administrator.

In situations where there is no one willing, suitable and available to take on the role of your administrator, the Tribunal may appoint the Public Trustee.

While an EPA which is made to come into effect immediately means an attorney can start making decisions even if the person has capacity, but may be physically unable to manage their finances, an administration order does not work this way. The Tribunal cannot appoint an administrator for someone who has capacity, even if they have a physical disability.

More information is available on the Office of the Public Advocate website.

Appointing someone as your attorney under an EPA is a very serious decision. You should have complete trust in the person or people you appoint and ensure they are capable of looking after your finances in your best interests. If you lose capacity in the future, your attorney/s will need to make decisions about your finances, when you are unable to understand the decisions or have any oversight of what is being decided.

Making an EPA is a private decision and there is generally no requirement for your attorney to have your accounts audited or to prepare annual reports on how your money is being managed.

Even with the best planning, there are situations where attorneys act inappropriately. This could be. for example, because they do not fully understand their responsibility and give money to your family members or themselves when there are limited funds that need to be saved for your care. Or this could be, for example, because they intentionally abuse their power and use your money for themselves or to pay their own expenses or they sell your property and keep the proceeds.

If you have capacity and believe the person you appointed as your attorney is managing your finances inappropriately, you should take steps to secure your finances and cancel (revoke) your EPA.

If you have lost capacity and someone is concerned that your attorney is acting inappropriately with your finances, they should make an application to the Tribunal, who has the power to intervene to stop any abuse of an EPA.

If it is discovered that an attorney is abusing their authority, the Tribunal may appoint the Public Trustee to try to recover the money that’s been lost.

You can make an EPA yourself, without any legal advice, or you may choose to get legal advice.

If you are worried about managing your financial affairs due to age or ill health, the Public Trustee can help. You can contact the Public Trustee’s office on 1300 746 116 or email public.trustee@justice.wa.gov.au for more information.

There is no cost to make an Enduring Power of Attorney, unless you need to get legal advice, or you choose to pay someone to help you make your Enduring Power of Attorney.

You can download the Office of the Public Advocate’s Enduring Power of Attorney Kit, for free. The kit has step-by-step instruction to help you complete the form, and two copies of the form at the back of the kit. There is also a more comprehensive Guide to Enduring Powers of Attorney which answers a range of common questions asked by people considering making an EPA, as well as information for people being asked to act as an attorney.

If you are unable to print the EPA form yourself, please contact the Office of the Public Advocate on opa@justice.wa.gov.au or 61 8 9278 7300 for alternative options.

Alternatively, a solicitor or the Public Trustee may prepare an EPA for you. The Public Trustee will only prepare an EPA if:

• you appoint the Public Trustee as the sole attorney under an immediate EPA (conditions apply); or
• at the same time as making a Will with the Public Trustee, you appoint your spouse or de facto partner as the sole attorney under either an immediate EPA or a dormant EPA.

The Public Trustee’s fee for preparing an EPA is set out in the Wills and Enduring Powers of Attorney brochure.

If you own property and decide to lodge your EPA with Landgate, you will be charged a fee by Landgate. If you need to revoke (cancel) your EPA after you have lodged it with Landgate, you will also be charged a fee by Landgate to revoke the EPA.

Appointing the Public Trustee as your attorney, using an Enduring Power of Attorney, gives you peace of mind that your financial and legal affairs are being handled with proven experience and sound judgement.

Public Trustee staff work with organisations whose activities affect their clients’ quality of life and wellbeing, including State and Local government agencies, banks, financial institutions, investment houses, and other commercial organisations.

For more information about the Public Trustee’s service and fees, read the Enduring Power of Attorney (EPA) Information for EPAs brochure.

If the Public Trustee is appointed to act under an Enduring Power of Attorney, ongoing fees will apply and you can find out more information from Enduring Power of Attorney (EPA) Information for EPAs.

You can also find out more information about EPAs, including whether fees can be charged, in A Guide to Enduring Power of Attorney in Western Australia.

Making an Enduring Power of Attorney involves completing an EPA form.

The EPA form is straightforward - most people should be able to complete it without legal or other assistance.

To be legally enforceable, the EPA form must be in the form, or substantially in the form, specified in Schedule 1 of the Guardianship and Administration Regulations 2005. The form contained in the Office of the Public Advocate's Enduring Power of Attorney Kit and guide meets these requirements.

Witnesses

You will need two people to witness your enduring power of attorney and both witnesses must be at least 18 years of age and have full legal capacity. One of the two witnesses must be a person authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005 (see Appendix B). The person who is the authorised witness must still be working in the occupation listed in the Oaths, Affidavits and Statutory Declarations Act 2005.

Printing an EPA Form

Completing the forms incorrectly could make your EPA or EPG invalid, which is why we recommend printing the kits in full, so you have the corresponding step-by-step instructions to help you complete the paperwork.

However, if you wish to print the form only, refer to the 'How to print the form only' for step-by-step instructions and page numbers.

If you still have problems printing you can request an EPA and/or EPG kit in hard copy format.  To do so, please contact our office on 1300 858 455 or email opa@justice.wa.gov.au and provide the full name and postal address of the person wishing to complete the document(s).

More help

Please also review our Frequently Asked Questions for additional information.

If you require more information about completing your EPA, the Office of the Public Advocate has a telephone advisory service.  Please call 1300 858 455 between 9.00 am and 4.30 pm, Monday to Friday, and you can speak to a staff member about your specific enquiries.

There is no formal registration process for an EPA in Western Australia and while the Office of the Public Advocate provides the forms, it does not have a formal role in checking your completed EPA.

It is not necessary to send your completed EPA to the Office of the Public Advocate. 

It is your responsibility to ensure all relevant people are provided with a copy of your completed EPA.  It is recommended that you provide certified copies of your EPA to your attorney(s), relevant family members and/or friends.

If you own a property, you may wish to lodge your EPA with Landgate so that if transactions relating to your property need to be made in future by your attorney, their authority to do so will be recognised.  Landgate charge a fee to do so, and you will need to lodge the document within three months of making it.  Visit the Landgate website for more information on lodging – and the process to lodge if not done within three months.

Keep your EPA somewhere safe where it can easily be found if needed.  This could be with your other planning documents, such as your enduring power of guardianship and advance health directive.  Ideally, let your attorney(s) know where it has been stored.

On most occasions, an EPA will need to be lodged with your banking institution.  Different banks have different policies when it comes to lodging an EPA, so it is recommended that you talk to your bank sooner, rather than later, about what their processes are for lodging an EPA.

Keep a list of who has a copy of your EPA.  This enables you to recall them, if you decide to revoke (cancel) your EPA in the future.

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. The person who is the authorised witness must still be working in the occupation listed in 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?

No - there is no formal registration process for an EPA in Western Australia. However if the donor owns land or property, they may wish 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.

Visit the Landgate website for more information on lodging – and the process to lodge if not done within three months.

If you decide to lodge your enduring power of attorney with Landgate, it is recommended that you make two originals at the time of completing your enduring power of attorney. This enables you to lodge both originals with Landgate, who will stamp and record both documents before returning one of them back to you.

If only one original is sent to Landgate, they will retain this copy and you will not have an original for your own records.

The Enduring Power of Attorney Kit includes two forms at the back of the booklet for this purpose.

How can I revoke (cancel) 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.

Can I change my EPA?

If a person wishes to change any aspect of their EPA (for example who they nominated to be their attorney), the Public Advocate recommends making a new one, and revoking the old one in writing (see previous question). This will ensure the EPA best reflects that person’s wishes and that all parts of the form are completed correctly.

Free EPA kits can be downloaded from the publications page.

If I no longer wish to be someone’s attorney, can I delegate my authority to someone else?

No, an attorney does not have the power to nominate someone else to carry out the role of attorney on their behalf.

If an attorney is unable to fulfil their responsibilities, they may resign from the position.

If the donor has capacity - the attorney should advise the donor they are resigning and return any personal documents and copies of the EPA.  In this situation the donor may choose to make a new EPA with a different attorney.

If the donor has lost capacity, the attorney will need to apply to the State Administrative Tribunal to be removed from the role, and for an alternative decision-maker to be appointed if required.

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.

Visit the Public Trustee’s Private Administrator Support webpage 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 get an Enduring Power of Attorney kit and form?

Enduring power of attorney kits and guides can be read online or downloaded free of charge from this website. The EPA form, found in the back of the kit and can be printed separately.  Follow the link for step-by-step instructions on how to print the form only.

If you have problems printing you can request a hard copy of the EPA kit.  To do so, please contact our office on 1300 858 455 or email opa@justice.wa.gov.au and provide the full name and postal address of the person wishing to complete the document.

Can I complete an EPA or EPG form electronically?

No – the forms require wet/physical signatures and are not designed to be completed electronically.

What if I don’t want to use the EPG kit provided?

If you would prefer to type in the information, the format for the Enduring Power of Attorney form is contained within the Guardianship and Administration Regulations 2005. This can be found at legislation.wa.gov.au where the form can be downloaded as a word document for you to type into.

I’m a service provider, can I place a bulk order of EPA kits to distribute to our clients?

The Office of the Public Advocate does not supply bulk orders of EPA and/or EPG kits to service providers. Instead, kits are sent directly to people who seek to make the powers.

Individuals wishing to make an EPA and/or EPG are invited to contact the office direct, so material can be sent direct to their home address.  This is to ensure the person requesting the material has capacity, understands the requirements/processes involved.  It also helps to mitigate coercive behaviour from third parties.

As an alternative, the Office supplies bulk orders of the Plain English – Who will make decisions for you? brochure, which provides a comprehensive breakdown of how Enduring Powers of Attorney, Enduring Powers of Guardianship and Advance Health Directives work.  This document gives service providers an informative handout to disseminate to clients as required.

If a service provider has a person in their care who is unable to contact us direct, they can do so on their behalf, providing the person’s full name and home address.  A kit can then be sent direct to that person, remembering it is the person’s choice as to whether they wish to make the power, or not.

Individuals and service providers can contact the Advisory Service (1300 858 455 or opa@justice.wa.gov.au if they have any EPA and/or EPG related enquiries.

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.