1. 33 things you should know about Enduring Power of Attorney in Western Australia

2. Disclaimer
The material in this presentation does not constitute legal advice. This presentation has been produced by Crystal 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 Crystal Lawyers.

3. What is an Enduring Power of Attorney?
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.

4. What is the difference between an EPA and a 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

5. Why should I make an EPA? 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

6. Who can give an EPA? anyone who is 18 years of age or older
has full legal capacity

7. Who should I appoint as my attorney?
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

8. How many attorneys can I appoint?
sole attorney
two joint attorneys – acting together
two joint and several attorneys – acting independently or together.
maximum of two attorneys

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

10. What can go wrong? 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

11. How do I make an EPA? 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

12. How many originals do I need?
one original for the donor
second original for the attorney
Landgate retains an original
other institutions may need to retain original

13. What if there is no EPA?
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

14. What are the limits of the attorney’s powers?
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.

15. Can I limit the decision making power of my attorney?
yes, however you should seek legal advice

16. How does my attorney/s accept their appointment?
sign statement of acceptance
on the reverse of the EPA
as soon as practicable after signing by donor

17. Does the EPA continue to be in force after the death of the donor?
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

18. What are my obligations as an attorney?
protect the interests of the donor
keep and preserve accurate records and accounts
report to SAT if I become bankrupt

19. What to do if I am in doubt about my decision making authority as an attorney?
apply to SAT for directions

20. What orders can I seek from SAT 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

21. How can I give up my attorney’s authority?
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

22. Who should witness the donor’s signature?
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

23. What are my obligations as a witness of an EPA?
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

24. Who has legal capacity?
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

25. What should I do with my EPA when I have completed it?
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

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

27. Who can cancel an EPA?
donor if still with full mental capacity
SAT

28. Is an EPA signed interstate or overseas valid in WA?
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

29. Can I protect assets interstate with a Western Australian EPA?
variation in requirements for EPA
sign an EPA in the jurisdiction where the assets are held
seek legal advice for the particular jurisdiction

30. Does a divorce automatically cancel an EPA?
a divorce doesn’t cancel an EPA between spouses
an EPA must be cancelled in writing

31. Does a subsequent EPA automatically cancel an earlier EPA?
a subsequent EPA does not cancel an earlier EPA
an EPA must be cancelled in writing

32. What to do if concerned about attorney’s performance?
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

33. What to do if the attorney becomes bankrupt?
the donor should cancel the EPA
report the bankruptcy to SAT if loss of legal capacity
SAT can make an order cancelling the EPA

34. What happens if the donor becomes bankrupt?
The donor’s estate vests in the trustee in bankruptcy

35. Does an EPA attract stamp duty?
Power of attorney including EPA is exempt from stamp duty