33 things you should know about Enduring Power of Attorney in

Western Australia

Disclaimer

The material in this presentation does not constitute legal advice.This presentation has been produced by Tan & Tan Lawyers and has been prepared as general information about Enduring Power of Attorney. It is not intended to provide legal advice and, as such, the content does not constitute legal advice. Use of this presentation does not create any solicitor-client relationship between the user and Tan & Tan Lawyers.

an Enduring Power of Attorney (EPA) is a legal agreement made by choice enables a person (donor) to appoint a trusted person as their attorney gives power to attorney to make financial and property decisions.

What is an Enduring Power of Attorney?

a Power of Attorney is valid so long as the donor is still capable of making decisions under the EPA an attorney can act even after the donor loses their legal capacity

What is the difference between an EPA and a Power

of Attorney?

loss of legal capacity can be sudden not possible to predict the onset of mental disability protect your financial interests appoint an attorney you can trust

Why should I make an EPA?

anyone who is 18 years of age or older has full legal capacity

Who can give an EPA?

you can appoint anybody over 18 years of age and with legal capacity someone you can trust someone who will make decisions in your best interests someone who is willing to take on the responsibility

Who should I appoint as my attorney?

sole attorney two joint attorneys – acting together two joint and several attorneys – acting independently or together. maximum of two attorneys

How many attorneys can I appoint?

to reduce the likelihood of having no attorney appoint a sole substitute attorney or two joint substitute attorneys or two joint and several substitute attorneys

Seek legal advice if appointing two attorneys in substitution of two original

attorneys

What if my attorney/s is no longer suitable or available?

no supervision of attorney abuse of attorney’s powers financial loss suffered by donor lack of mental capacity of donor question of validity of EPA

What can go wrong?

you need to be of sound mind you need to decide who to appoint decide on any conditions or restrictions decide when the power will be in force have your lawyer draft and witness the EPA

How do I make an EPA?

one original for the donor second original for the attorney Landgate retains an original other institutions may need to retain original

How many originals do I need?

application to the State Administrative Tribunal (SAT) any person can apply SAT will determine if loss of capacity SAT may appoint an administrator the administrator could be anyone

What if there is no EPA?

make a will on behalf of the donor; make personal, lifestyle or treatment decisions do any act which is illegal; deal with any property held in trust by the donor 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.

What are the limits of the attorney’s powers?

yes, however you should seek legal advice

Can I limit the decision making power of my

attorney?

sign statement of acceptance on the reverse of the EPA as soon as practicable after signing by donor

How does my attorney/s accept their appointment?

the death of the donor automatically cancels the EPA the provisions in the Will come into force if no Will the provisions of the Administrative Act come into force

Does the EPA continue to be in force after the death of

the donor?

protect the interests of the donor keep and preserve accurate records and accounts report to SAT if I become bankrupt

What are my obligations as an attorney?

apply to SAT for directions

What to do if I am in doubt about my decision making authority as an attorney?

cancel an EPA vary the terms of an EPA appoint a substitute attorney confirm appointment of substitute attorney directions about decision making authority

What orders can I seek from SAT as an attorney?

if donor has capacity advise them in writing if donor has lost capacity you may not give up

the powers if donor has lost mental capacity apply to SAT

How can I give up my attorney’s authority?

two witnesses who are 18 years of age or older both witnesses must have full legal capacity at least one witness must be an authorised witness a person who is not an authorised witness cannot be an the attorney

Who should witness the donor’s signature?

identify the donor be present when the donor signed the EPA initial any amendments made to EPA decline to witness if in doubt about donor’s legal capacity decline to witness if donor appears under duress

 What are my obligations as a

witness of an EPA?

a person who understand the main consequences of a decision; a person able to take responsibility for making a choice; and a person able to make a choice based on the risks and benefits

 Who has legal capacity?

give a certified copy to all relevant people if you own real estate lodge EPA with Landgate keep a list of who you have provided a copy of your EPA keep the original in a safe place tell your attorney where the original is kept

  What should I do with my

EPA when I have completed it?

write a letter cancelling (revoking) the EPA give letter to attorney and all other relevant parties register cancellation with Landgate collect all copies of your EPA destroy all copies of your EPA

 

How can I cancel an EPA when with full mental capacity as the donor?

donor if still with full mental capacity SAT

 

 Who can cancel an EPA?

State legislation regulates EPAs the attorney may apply to SAT seek an order recognising the EPA in WA if satisfied SAT will make the order

 

 

Is an EPA signed interstate or overseas valid in WA?

variation in requirements for EPA sign an EPA in the jurisdiction where the assets are held seek legal advice for the particular jurisdiction

 

 

Can I protect assets interstate with a Western

Australian EPA?

a divorce doesn’t cancel an EPA between spouses an EPA must be cancelled in writing

 

 

Does a divorce automatically cancel an EPA?

a subsequent EPA does not cancel an earlier EPA an EPA must be cancelled in writing

 

 

Does a subsequent EPA automatically cancel an

earlier EPA?

seek an order from SAT for attorney to provide all records and accounts seek an order from SAT for records and accounts to be audited seek any of the orders that an attorney may seek from SAT inform Landgate of any concerns in writing inform all other relevant persons or bodies

 

 

What to do if concerned about attorney’s

performance?

the donor should cancel the EPA report the bankruptcy to SAT if loss of legal capacity SAT can make an order cancelling the EPA

 

 

What to do if the attorney

becomes bankrupt?

The donor’s estate vests in the trustee in bankruptcy

 

 

What happens if the donor becomes bankrupt?

Power of attorney including EPA is exempt from stamp duty

 

 

Does an EPA attract stamp duty?

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