Enduring power of attorney in Western Australia

Introduction

A power of attorney is a legal document that allows you to nominate someone to act as your decision-maker to manage financial and property decisions on your behalf. In Western Australia, your decision-maker is known as the ‘donee’, and you are known as the ‘donor’.

A power of attorney in Western Australia only covers financial and property decisions. Your donee can make decisions such as:

operating bank accounts
paying bills
managing shares and investments
buying and selling real estate

In your power of attorney document, you can authorise your donee to act in all financial matters or can set limits on the financial and property decisions that the donee is able to make – for example, only decisions about buying and selling of real estate.

Donees appointed under a power of attorney can’t make decisions about your health, lifestyle or where you live. In Western Australia you need to appoint an enduring power of guardianship to make lifestyle and medical decisions on your behalf.

You can also have an advance health directive specifically for medical, dental and surgical decisions.

There’s more information below about these two decision-making options.

To appoint a power of attorney, you must:

be over the age of 18 and
understand the effect of making a power of attorney

Types of powers of attorney

There are two types of powers of attorney in this state. Other states and territories have similar documents, although they may have different names and different rules.

1. General power of attorney

A general power of attorney can only be used while you have capacity to make your own decisions, and it can only be used to make decisions about financial matters. It ends if you lose decision-making capacity, so it’s not a future planning tool. Typically, a general power of attorney is in place for a specific time – for example, if you are travelling overseas or are injured and therefore need someone else to deal with your finances temporarily.

Under a general power of attorney, the donee you have appointed can only act on your behalf for the time period, task or circumstances you have specified. For example, if you regularly travel, you might authorise your donee to make financial decisions whenever you are overseas.

If your power of attorney does not have any specified limits in place, it ends when you no longer have decision-making capacity or when you die.

2. Enduring power of attorney

Unlike a general power of attorney, an enduring power of attorney continues after you have lost legal capacity. So it allows you to nominate someone to make financial and property decisions for you when you can no longer do so. They can’t make other kinds of decisions for you.

You can only make an enduring power of attorney while you still have the capacity to make your own decisions, and you can specify when the enduring power of attorney is to come into effect – either immediately, or only when you have lost legal capacity (this option is sometimes called a ‘dormant’ enduring power of attorney).

If you specify immediate effect, you can continue to manage your financial affairs while you have legal capacity, or you might choose to ask your donee to act under your guidance. But the choice means that your donee will be authorised to act for you if you should become unable to make your own decisions for another reason – for example, due to a loss of ‘physical capacity’.

A dormant enduring power of attorney can take effect once it’s been determined you no longer have legal capacity. The donee can apply to the State Administrative Tribunal (SAT) for the determination to be made.

For more information about enduring power of attorney in Western Australia, including information sheets and guides, visit the Office of the Public Advocate’s website.

Enduring powers of attorney in Western Australia are covered by the Guardianship and Administration Act 1990, which you can read on the Government of Western Australia website.

Every Australian state and territory has different rules governing powers of attorney. It’s important to check the rules in other jurisdictions if you think your attorney may need to act on your behalf in financial matters in other jurisdictions.

What is ‘capacity’?

Capacity means the ability to make your own decisions. People may have capacity throughout their adult years and look after their own financial and other decisions, but they may lose capacity due to an accident, illness or adverse effects of ageing.

Capacity is required for your own decisions to be made lawfully. An enduring power of attorney sometimes begins once the donor has ‘lost capacity’.

Generally, you have decision-making capacity if you are able to:

understand the information relevant to the decision and the effect of the decision
retain that information to the extent necessary to make that decision
use or weigh up that information as part of the process of making the decision
communicate the decision and your views and needs in some way, including by speech, gestures or other means

Other decision-making options

Enduring power of guardianship

An enduring power of guardianship is used to appoint one or more people as your ‘enduring guardian’ to make lifestyle or personal decisions for you if you are no longer able to make them yourself any more.

The guardian can make lifestyle and medical decisions, depending on what powers you decide to give them. They can’t make financial decisions or manage your finances.

The types of decisions that are typically made by a guardian are:

where you live – whether you stay in your own home or move into aged care
who you live with
what support services you should receive (cleaning, self-care)
who you have contact with – friendships and family members

This is an important role, so it’s vital to choose someone you trust who understands what you would want. For some people, it’s an opportunity to make sure that what is right for you in your culture – for example, religious or cultural practices or expectations of family roles – is respected and provided for you.

Advanced health directive

An advanced health directive helps you decide what future medical, surgical or dental care you will receive if you can’t make the decisions yourself at the time. The document binds medical staff to follow your wishes, and it can cover anything from a simple decision about dental care through to end-of-life and palliative care decisions.

A guardian under an enduring guardianship appointment can also make medical decisions. The advanced health directive will override the guardianship if the two documents are ‘in conflict’ (which means, they say different things). So whatever directions a person records in their advance health directive will be the directions the medical team will follow.

You can choose different people to be you enduring guardian and your decision-maker in the advanced health directive, or you can appoint the same person to both roles.

Understanding powers of attorney

Who can be appointed?

In Western Australia you can appoint anyone over the age of 18 who has the legal capacity to make their own decisions. You can appoint family members, friends, your lawyer or your accountant. You can also appoint a trustee agency.

It’s a good idea to think very carefully about who you choose to be your donee. It should be someone who is unlikely to die before you do and is willing, able and available to take on the role. They must understand what is involved in the role and agree to take it on.

You should talk with several people before you make up your mind. To help you think about how to have these conversations, you might like to watch this short film by Seniors Rights Victoria.

For more about how to decide who to appoint, see the Choosing an attorney page.

Can I have more than one attorney?

In Western Australia you can appoint up to two people to act as your donees.

You can also nominate a substitute for each donee you appoint, in case one of your appointed donees is no longer able to act on your behalf or wishes to resign. This can be particularly important when making an enduring power of attorney, as if you lose capacity it will no longer be possible for you to appoint a new attorney.

If you appoint more than one donee, you can authorise them to make decisions:

individually (known as ‘severally’)
together (known as ‘jointly’)
or a combination of jointly and severally

For example, you could require all decisions related to real estate to be made jointly but allow each donee to make individual decisions about spending money for your day-to-day expenses.

If you are appointing more than one donee, it is a good idea to think about how they would could work together to make decisions and problem-solve as a team to make the best decision for you.

In this article, ‘donee’ refers to both one and multiple appointed donees.

What are the donee’s responsibilities when acting on my behalf?

A donee is legally obliged to act in the donor’s best interests, manage their estate responsibly, and ensure that they enjoy as good a standard of living as their estate can provide.

Your donee should make decisions that reflect your choices and values and, wherever possible, support your participation in the decision-making. In every decision, the donee should consider ‘your wills and preference’ and, where possible, work with you to decide what that is.

Donees are responsible for their actions and for making prudent financial decisions. While they aren’t required by the law to submit financial reports about their activities, they are obliged to keep good financial records.

As the donor, you can limit or place conditions on the donee’s decision-making power when you make your power of attorney. For example, you can require them to submit accounts to a nominated accountant every year.

What if my donee is not acting in my best interests?

If you are concerned that your attorney is not acting in your best interests and you still have full legal capacity, you may be able to change or revoke your power of attorney.

If you have lost capacity and others are concerned that the donee is not acting in your best interests, they may be able to apply to SAT to intervene in the power of attorney. Visit SAT’s website for more details.

What happens if you lose capacity and don’t have an enduring power?

In these circumstances, SAT can appoint a guardian to make personal decisions for you and an administrator to make financial decisions. This appointment is made only as a last resort and only if other solutions aren’t viable. This is called a ‘least restrictive practice’ approach.

The SAT may appoint a family member or trusted friend, or they may appoint the Public Advocate to act as guardian and the Public Trustee to act as administrator. Visit the SAT website for more information about guardianship and administration.

Making and changing

In Western Australia there are standard forms for completing a power of attorney.

General power of attorney form

Enduring power of attorney form (this form is accompanied by a guide to assist you in completing it)

Do I need to have a lawyer prepare my power of attorney?

The Public Advocate recommends that you consider getting legal advice if you are making a complicated enduring power – for example, if you impose special conditions or restrictions on the decision-making authority of the appointed donee. In most cases, you will need to pay for this advice or for assistance in preparing the document.

A solicitor or the Public Trustee may prepare an enduring power of attorney for you. However, the Public Trustee will only prepare an enduring power of attorney if:

you appoint the Public Trustee as the sole attorney under an immediate enduring power of attorney (conditions apply), or
you appoint your spouse or de facto partner as the sole donee under an enduring power of attorney at the same time as making a will with the Public Trustee

Do I have to register my general or enduring power of attorney?

In Western Australia you do not need to register either a general or an enduring power of attorney.

The registration with Landgate must take place within 3 months of signing of the power of attorney, otherwise there will be additional administrative steps to be taken. Visit the Landgate website for more information.

You should give your donee a copy of your power of attorney and consider giving copies to other important people such as family, friends, carers or your healthcare professionals.

Who can witness a power of attorney?

An enduring power of attorney in Western Australia needs be witnessed by two adults, one of whom must be authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005. You can find the list of authorised occupations on ‘Authorised witnesses’ page of the State Government website.

Can I change or cancel my power of attorney?

You can change or cancel (revoke) a general power of attorney at any time, but you can only change or cancel an enduring power of attorney if you still have capacity to make your own decisions. Click here to lodge an application.

You must tell your donee that you have changed or revoked it and you must do this in writing. If you gave copies to anyone else, you must advise them of the changes or revocation.

If you no longer have capacity, you (or someone else) will need to apply to State Administrative Tribunal (SAT), who can decide if the enduring powers of attorney should remain or be revoked or whether a different donee should be appointed.

If you registered your power of attorney with Landgate, you will also need to register the revocation advice.

Image of a man sitting at a desk signing a form

Checklist and resources

This checklist will guide you through the process of making an enduring power of attorney (EPOA) in Western Australia. It will show you what to think about and connect you to relevant information.

This checklist includes the following:

Background information and resources to help you research and prepare to make an EPOA.
Practical information you will need to consider before completing the EPOA form.
Helpful information to help you complete the EPOA form.
Information about how to correctly sign and witness your EPOA.
Information about registration requirements and tips on where and how to store your EPOA.
Information to assist you should you want to change or revoke your EPOA.

More resources

Office of the Public Advocate

Offers a telephone advisory service that provides information about enduring powers of attorney and enduring powers of guardianship. Recorded information, including answers to a range of common questions regarding enduring powers of attorney and enduring powers of guardianship, is available 24 hours a day.

To speak to an advisory officer, call the service between 9 am and 4:30 pm, Monday to Friday.

Tel: 1300 858 455 (cost of a local call)

Website: Click here