Enduring Power of Attorney

Presented by Debra Casey

Senior Policy Officer

Guardianship and Administration Act 1990

Protects and promotes the human rights of people with a decision-making disability

Part A provides for Enduring Powers of Attorney

What does an EPA do?

$$$It enables a competent person (donor) to provide authority to another (attorney/donee) to make property and financial decisions

Scope of attorney’s powers

The attorney stands in the shoes of the donor in regard to property and financial matters

Estate management

The donor’s best interests are paramount in managing the estate

Benefits of an EPA

• Prepare for the future

• Protect yourself from exploitation

• Choose how you want your money to be managed if you lose capacity

What to do if……

• A client wants to make an EPA

Capacity issues

• If there are any doubts about a person’s capacity the document may be invalid

• If there is ANY doubt, consult a medical practitioner

Who to choose?

Is the proposed attorney:

• trustworthy?

• willing to take on the responsibilities?

• skilled and knowledgeable in areas relevant to the donor’s estate?

Who to choose?

• Can they keep accurate records?

• Are they available to make decisions?

• Is the appointment likely to cause conflict within the family?

What to do if……

• Someone says they are a persons attorney

Witnessing EPAs

The document requires that:

• 2 witnesses are present at the time of signing

• Witnesses must be authorised

When does the power begin?

• There are choices described in clause 4 of the EPA Information Kit (p6)

– Clause 4(a) gives the attorney immediate

power to act

– Clause 4(b) only gives power to the attorney if

the State Administrative Tribunal – on

application from the attorney – finds the donor

does not have legal capacity

Revocation

The process of revoking an EPA depends on whether or not the donor has capacity

What to do if……

• You think someone’s money is not being managed in their best interests

Obligations of attorney

• Must keep and preserve accurate records and accounts of all dealings and transactions

• Must apply to the Tribunal if unable to continue as attorney once donor has lost capacity

• Must exercise power with reasonable diligence

Attorneys could be in breach if they:

Make a gift of donor’s assets or income. For example:

– forgive a loan owing to a donor

or

– dispose of assets at less than market

value

$$$

Registration

If the donor owns land he or she may wish to lodge the EPA at Landgate*

(*formerly Department of Land Information)

Role of the State Administrative Tribunal (SAT)

• When a person has lost capacity the SAT . . .

– Has some authority in relation to EPAs

– receives applications for intervention where

problems may exist

Telephone Advisory Service (TAS)

1300 858 455

• For information and advice on:

• allegations of abuse (of adults with a decision-making disability)

• Guardianship and Administration• Enduring Powers of Attorney

Where to find an EPA kit

• State Law Publisher

Email: sales@dpc.wa.gov.au

Ph: 9321 7688

• www.publicadvocate.wa.gov.au

• Some Newspower newsagencies

Useful Contacts

– OPA website• www.publicadvocate.wa.gov.au

– SAT website• www.sat.justice.wa.gov.au