It is important to consider making an EPA in case you lose capacity to make independent and informed financial decisions in the future.
An EPA can be made by anyone over the age of 18, who has full legal capacity.
There are different views on what 'full legal capacity' means. It may mean that you can understand:
- the nature and extent of what you own
- that your attorney will, in general, be able to do anything with your property which you yourself could do
- that while you are mentally capable, you may direct your attorney to act in a particular way and may revoke (cancel) the EPA
- that if you become mentally incapable, the EPA will continue and can only be revoked in limited circumstances
- that your attorney won’t be monitored or audited, so you are placing a very high level of trust in that person or organisation.
An EPA cannot be made by another person on behalf of someone whose capacity might be in doubt due to mental illness, acquired brain injury, cognitive impairment or dementia. The benefit of an EPA is that, unlike an ordinary power of attorney, it will continue to operate even if the person who made the document (the donor) loses full legal capacity.
When a person makes an Enduring Power of Attorney, they can choose for their attorney’s authority to start immediately or only if they lose capacity.
If you make an EPA and choose for it to start immediately, this doesn’t mean you can no longer make decisions about your property and finances. But it means if you want your attorney to be able to start doing certain financial tasks for you, they will have the legal authority to do so, under your guidance. Then if you lose capacity in the future, your attorney will be able to step in and start making these decisions for you.
If you choose for your EPA to only come into effect if you lose capacity, this means your attorney will only ever have authority to make your property and financial decisions if the State Administrative Tribunal determines you have lost capacity. If in the future, your attorney believes you are no longer able to make decisions about your property and finances, they will need to apply to the Tribunal to have them make that decision.
An EPA does not give an attorney the authority to make personal and lifestyle decisions, including decisions about treatment and medical research. The authority of the attorney is limited to decisions about property and financial affairs. If you want to give authority to a person/s to make personal, lifestyle, treatment and medical research decisions on your behalf, you should consider making an Enduring Power of Guardianship.
To cancel (revoke) an Enduring Power of Attorney, the person who made it must have full legal capacity. The cancellation (revocation) should be made in writing. If the person has lost capacity, an application can be made to the Tribunal to decide if the EPA should be cancelled.
For information about Enduring Powers of Guardianship and Advance Health Directives, refer to the Office of the Public Advocate website.
Frequently Asked Questions
Why make an Enduring Power of Attorney?
Show moreMany decision-making disabilities are caused by illness, accident or trauma. There is no way of knowing if or when any of us will lose the capacity to make decisions for ourselves, or be physically unable to attend to property and financial matters.
By making an EPA you can authorise a person/s (or organisation), who you know and trust, to make property and financial decisions for you in your best interests, in case you lose capacity or are physically unable to manage your finances.
What happens if I don’t make an Enduring Power of Attorney?
Show moreIf you lose capacity to make decisions about your property and finances and you have not made an Enduring Power of Attorney, there may be no one with the legal authority to manage your financial affairs. This may mean a family member or someone else involved in your life needs to apply to the Tribunal to have someone appointed to take on this role (also known as an administrator). The Tribunal might appoint a family member or friend as your administrator.
In situations where there is no one willing, suitable and available to take on the role of your administrator, the Tribunal may appoint the Public Trustee.
While an EPA which is made to come into effect immediately means an attorney can start making decisions even if the person has capacity, but may be physically unable to manage their finances, an administration order does not work this way. The Tribunal cannot appoint an administrator for someone who has capacity, even if they have a physical disability.
More information is available on the Office of the Public Advocate website.
Are there any risks involved with making an Enduring Power of Attorney?
Show moreAppointing someone as your attorney under an EPA is a very serious decision. You should have complete trust in the person or people you appoint and ensure they are capable of looking after your finances in your best interests. If you lose capacity in the future, your attorney/s will need to make decisions about your finances, when you are unable to understand the decisions or have any oversight of what is being decided.
Making an EPA is a private decision and there is generally no requirement for your attorney to have your accounts audited or to prepare annual reports on how your money is being managed.
Even with the best planning, there are situations where attorneys act inappropriately. This could be. for example, because they do not fully understand their responsibility and give money to your family members or themselves when there are limited funds that need to be saved for your care. Or this could be, for example, because they intentionally abuse their power and use your money for themselves or to pay their own expenses or they sell your property and keep the proceeds.
If you have capacity and believe the person you appointed as your attorney is managing your finances inappropriately, you should take steps to secure your finances and cancel (revoke) your EPA.
If you have lost capacity and someone is concerned that your attorney is acting inappropriately with your finances, they should make an application to the Tribunal, who has the power to intervene to stop any abuse of an EPA.
If it is discovered that an attorney is abusing their authority, the Tribunal may appoint the Public Trustee to try to recover the money that’s been lost.
You can make an EPA yourself, without any legal advice, or you may choose to get legal advice.
If you are worried about managing your financial affairs due to age or ill health, the Public Trustee can help. You can contact the Public Trustee’s office on 1300 746 116 or email public.trustee@justice.wa.gov.au for more information.
What does it cost to make an Enduring Power of Attorney?
Show moreThere is no cost to make an Enduring Power of Attorney, unless you need to get legal advice, or you choose to pay someone to help you make your Enduring Power of Attorney.
You can download the Office of the Public Advocate’s Enduring Power of Attorney Kit, for free. The kit has step-by-step instruction to help you complete the form, and two copies of the form at the back of the kit. There is also a more comprehensive Guide to Enduring Powers of Attorney which answers a range of common questions asked by people considering making an EPA, as well as information for people being asked to act as an attorney.
If you are unable to print the EPA form yourself, please contact the Office of the Public Advocate on opa@justice.wa.gov.au or 61 8 9278 7300 for alternative options.
Alternatively, a solicitor or the Public Trustee may prepare an EPA for you. The Public Trustee will only prepare an EPA if:
- you appoint the Public Trustee as the sole attorney under an immediate EPA (conditions apply); or
- at the same time as making a Will with the Public Trustee, you appoint your spouse or de facto partner as the sole attorney under either an immediate EPA or a dormant EPA.
The Public Trustee’s fee for preparing an EPA is set out in the Wills and Enduring Powers of Attorney brochure.
If you own property and decide to lodge your EPA with Landgate, you will be charged a fee by Landgate. If you need to revoke (cancel) your EPA after you have lodged it with Landgate, you will also be charged a fee by Landgate to revoke the EPA.
Appoint the Public Trustee as my attorney
Show moreAppointing the Public Trustee as your attorney, using an Enduring Power of Attorney, gives you peace of mind that your financial and legal affairs are being handled with proven experience and sound judgement.
Public Trustee staff work with organisations whose activities affect their clients’ quality of life and wellbeing, including State and Local government agencies, banks, financial institutions, investment houses, and other commercial organisations.
For more information about the Public Trustee’s service and fees, read the Enduring Power of Attorney (EPA) Information for EPAs brochure.
Fees for acting under an Enduring Power of Attorney
Show moreIf the Public Trustee is appointed to act under an Enduring Power of Attorney, ongoing fees will apply and you can find out more information from Enduring Power of Attorney (EPA) Information for EPAs.
You can also find out more information about EPAs, including whether fees can be charged, in A Guide to Enduring Power of Attorney in Western Australia.
I need help making an Enduring Power of Attorney
Show moreIf you have read through this website information and are still unsure about making an Enduring Power of Attorney, reading the Public Advocate’s publication – A Guide to Enduring Power of Attorney could help. The office also produces a shorter publication – Enduring Power of Attorney Information Kit.
If you are looking for more information, the Office of the Public Advocate has a telephone advisory service. If you call 1300 858 455, you can listen to recorded information about Enduring Powers of Attorney. Or if you call between 9.00 am to 4.30 pm Monday to Friday, you can speak to a staff member about your specific queries.
