Do you have Questions about Powers of Attorney or Advanced Health Directives?
At Butlers, Powers of Attorney are an important part of your overall Estate Plan. Find out more information here.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) is a legal agreement that allows you to nominate a person of your choice to make financial and/or property decisions on your behalf, during your lifetime. This person is referred to as your attorney. An EPA does not allow an attorney to make personal or lifestyle decisions.
You can make an EPA if you are over the age of 18 years and have full legal capacity, which means that you understand the nature and effect of the EPA.
An EPA must be signed in the presence of at least one authorised witness and a second independent witness over the age of 18 years.
When does an EPA come into effect?
An EPA can be effective:
- immediately; or
- only upon a declaration of the State Administrative Tribunal that you have lost capacity.
Who can I appoint as my attorney?
You can appoint:
- A sole attorney;
- Joint attorneys, two attorneys who must make decisions together; or
- Joint and several attorneys, two attorneys who can make decisions together and/or independently.
You may only appoint a maximum of two attorneys to act.
You may also appoint up to two substitute attorneys in the event that your appointed attorneys are unable to act.
Do I need an Enduring Power of Attorney?
If you have not made an EPA and you lose capacity and are unable to manage your financial affairs, a person will need to make an application to the State Administrative Tribunal to obtain an order to manage your financial affairs. This person becomes the Administrator of your affairs.
In this event, you do not have control over who the State Administrative Tribunal appoints as your Administrator and it may lead to a distrusted family member or a third party such as the Public Trustee being put in charge of your financial affairs.
Even if the person appointed by the State Administrative Tribunal is the same person you would have appointed under your EPA, the process is time-consuming and potentially costly for the person having to make the application.
Do I have to register my EPA?
There is no requirement to lodge your EPA. However, if you wish for your attorney to act on your behalf in property transactions, you will need to register your EPA with Landgate.
Can I revoke an EPA?
You can revoke your EPA at any time, provided you still have the legal capacity to do so. The State Administrative Tribunal also has the authority to make orders to revoke an EPA
Who should I choose as my attorney(s)?
Who you choose as your attorney is up to you. It could be your spouse or partner, a family member or close friend, a trusted advisor such as your accountant, lawyer or a trustee company.
No more than two people can be attorneys at any one time. When choosing an attorney, we recommend you give careful consideration to the following questions:
- Is the person 18 years of age or older?
- Does the person have ‘full legal capacity’?
- 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?
What can my attorney do?
Upon your EPA coming into effect, depending on the terms of your EPA, your nominated attorney will have the authority to manage your financial and property affairs within your best interests.
They will 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.
How do I decide when my EPA should come into effect?
Before signing your EPA you must decide whether you would like your EPA to be in force immediately notwithstanding subsequent legal incapacity, or only in the event that you no longer have capacity.
If you choose for your EPA to be in force immediately your Attorney will be able to manage your financial and property affairs straight away. This can come in handy if you are overseas or otherwise unable to manage your affairs yourself.
If you choose for it to come into effect only if you lose capacity, an application will need to be made to the State Administrative Tribunal (SAT) to confirm the loss of capacity and declare the EPA in force.
Contact us to discuss whether an Enduring Power of Attorney is right for you.
What is an Enduring Power of Guardianship?
An Enduring Power of Guardianship (EPG) is a legal agreement that allows you to nominate a person of your choice to make your personal, lifestyle and treatment decisions on your behalf, should you become incapable of making these decisions for yourself, during your lifetime. This person is referred to as your enduring guardian.
Your enduring guardian is not authorised to make financial or property decisions on your behalf.
You can make an EPG if you are over the age of 18 years and have full legal capacity.
An EPG must be signed in the presence of at least one authorised witness and a second independent witness over the age of 18 years.
Who can I appoint as my guardian?
The person you choose to be your guardian is up to you. It could be your spouse or partner, a family member or close friend, a trusted advisor such as your accountant, lawyer or a trustee company.
The person you appoint as your enduring guardian must also be 18 years of age or older and have full legal capacity.
You can appoint more than one person to be your enduring guardians, however, they must act jointly in any decision they make. It recommended that you choose guardians who get along with each other, or risk arguments relating to decisions about your care.
It is recommended that you only appoint a maximum of two enduring guardians.
What can my enduring guardian do?
Your enduring guardian can:
- decide where you live, permanently or temporarily;
- decide who you live with;
- decide whether or not you work and, if so, any matters related to that work
- make treatment decisions on your behalf to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardio-pulmonary resuscitation);
- decide what education and training you receive;
- determine who you associate with;
- commence, defend, conduct or settle any legal proceedings on your behalf, except proceedings that relate to your property or estate;
- advocate for and make decisions about the support services you access; and
- seek and receive information on your behalf.
Do I have to register my EPG?
An EPG is a private agreement, it is not required to be registered with any governing body.
Can I revoke an EPG?
You can revoke your EPG at any time, provided you still have the legal capacity to do so.
Contact us to discuss whether an Enduring Power of Guardianship is right for you.
What is an Advanced Health Directive?
An Advanced Health Directive (AHD), commonly known as a “Living Will” is a legal document that allows you to make decisions about the medical treatment or health care decisions you would want in the event that you no longer have the capacity to make those decisions yourself.
What are some examples of Treatment decisions that can be made?
Some examples of Treatment Decisions you can make include (but are not limited to):
Treatment Decision 1 Example –
If I lose capacity, I would like all treatment recommended by my health care professional.
Treatment Decision 2 Example –
If I am determined to be in a permanent vegetative state, I consent to/refuse consent to the following: (this can include any treatment that would obstruct natural death, any artificial means of sustaining life or medication)
Treatment Decision 3 Example –
If I am unable to live without artificial means, I consent to/refuse consent to the following: (this can include any treatment that would obstruct natural death, any artificial means of sustaining life or medication)
Treatment Decision 4 Example –
If I become terminally ill, I consent to/refuse consent to the following: (this can include any treatment that would obstruct natural death, any artificial means of sustaining life or medication)
Contact us to discuss whether an Advanced Health Directive is right for you.