An enduring power of attorney does not permit an attorney to make personal and lifestyle decisions, including decisions about treatment. The authority of the attorney is limited to decisions about the donor's property and financial affairs only.
An Enduring Power of Attorney will continue indefinitely even if the person (Principal) loses mental capacity. The power “endures” beyond your loss of legal capacity. This is in comparison to a General Power of Attorney which has a limited time frame or is signed for a specific event. The attorney appointed under a general power of attorney loses the power to act if you lose legal capacity.
An Enduring Power of Attorney is not the same as a will.
Why appoint an attorney?
By appointing an attorney, your property and financial affairs can be managed in your best interests, if you are unable to manage them yourself. Your attorney can make these property and financial decisions at any time whilst you have legal capacity (eg travelling overseas or unwell and unable to leave home) or only if you lose legal capacity. If the latter is the case, the State Administrative Tribunal determines if you have lost capacity.
Who can be your Enduring Power of Attorney?
Your attorney can be anyone over the age of 18 years who can assist an individual with money or property. It can be a relative, friend or professional adviser. It does not have to be lawyer or solicitor.
You can have a sole, joint or joint and several attorneys. A sole attorney is one person appointed as attorney. Joint attorneys are two people appointed as attorney who must act together an agree on all decisions that are made. Joint and Several attorneys are two people appointed as attorney who can make decisions independently or together.
What can an Enduring Power of Attorney do?
The appointed person can:
What can’t an Enduring Power of Attorney do?
The appointed person cannot:
What happens if I don’t have an Enduring Power of Attorney?
If you don’t have an Enduring Power of Attorney and someone needs to make financial decisions on your behalf, they will have to apply to be appointed to the role, either through the Civil and Administrative Tribunal or the Supreme Court. This can take a long time so it’s much easier to give someone an enduring power of attorney.
Just remember that this document can be signed and filed together with your will. Unlike your will, the Enduring Power of Attorney may not ever be put in place. That is, if you have full legal capacity all your life and you have elected that it only is invoked if you lose legal capacity, then it may never be invoked. The EPoA will cease, immediately, on your death. This is a document that is used for estate planning to ensure that your wishes are carried out after you lose legal capacity.
Where can I find more information on EPoA’s?
The WA Department of Justice has an Enduring Power of Attorney Information Kit. You can find it at https://www.publicadvocate.wa.gov.au/_files/epa_kit.pdf.
The team at BHR Papalia can assist you with any estate planning. The November newsletter will discuss Enduring Power of Guardianship.