Australia: Wills and Estate Planning Basics Series: Enduring Powers of Attorney and Guardianship

Last Updated: 13 June 2017
Article by Simon Creek

In this series we will discuss the fundamental basics of Wills and Estate Planning, providing information and guidance that may answer questions you have throughout this process. This week we discuss the Enduring Powers of Attorney (EPAs) and Enduring Powers of Guardianship (EPGs).

Enduring Powers of Attorney (EPAs) and Enduring Powers of Guardianship (EPGs) allow you to have control over your financial and personal affairs in circumstances where you would not otherwise have control. These documents are becoming increasingly popular and important in managing the affairs of our aging population. They are important for adults of all ages, however, many people do not understand the difference and interaction between them.

Enduring Power of Attorney

  1. What is an EPA for?

Under a properly executed EPA, the Donor appoints an attorney to make financial and property decisions on the Donor's behalf.

  1. Donor

A Donor is the particular person that makes the EPA.

  1. Attorney

The Donor appoints the Attorney when creating the EPA (Attorney). The Donor can appoint up to two Attorneys and two substitute Attorneys. If the donor appoints more than one Attorney, the Donor must choose whether those Attorneys must act together (jointly) or if the decision of one attorney is sufficient (severally).

  1. When does the EPA take effect?

The EPA may grant an Attorney the power to make decisions immediately upon you signing the EPA or alternatively only upon the State Administrative Tribunal declaring you have lost capacity to make your own decisions. The EPA continues to grant an Attorney power even after the Donor becomes incapacitated.

  1. What must the attorney do?

The Attorney must comply with all lawful terms as set out in the EPA deed. The Attorney's powers can include paying your bills, accessing the Donor's bank accounts and buying, selling and mortgaging the donor's land.

The Attorney also has duties:

  • To act in the best interests of the Donor;
  • To keep all records of transactions regarding the Donor's property; and
  • To continue to act as Attorney after the Donor has become incapacitated. The only way the attorney can top acting as Attorney is by applying to the State Administrative Tribunal of Western Australia.

Enduring Power of Guardianship

  1. What is an EPG used for?

Under a properly executed EPG a person (Appointer) appoints a 'Guardian' to make personal, lifestyle and medical treatment decisions for you.

  1. What is a Guardian?

The appointed Guardian must be:

  • 18 years or older;
  • have full legal capacity; and
  • consent to act as guardian.

The Appointer can appoint any number of guardians and any number of substitute guardians.

  1. Powers of Guardians

The Guardian's powers can be limited to those set out in the EPA deed, or 'plenary' which includes all powers provided by the Guardianship Act 1990 (WA) such as:

  1. deciding where the Appointor is to live, whether permanently or temporarily;
  2. deciding with whom the Appointor is to live;
  3. deciding whether the Appointor should work and, if so, the nature or type of work, for whom he is
  4. to work and matters related thereto;
  5. representing the Appointor in legal proceedings excluding proceedings related the Appointor's
  6. estate or property;
  7. medical treatment decisions for the Appointor;
  8. deciding what education and training the Appointor is to receive;
  9. deciding with whom the Appointor is to associate with; and
  10. all functions under the Family Law Act 1997 with respect to a parenting order which allocates
  11. responsibility for a child.

Guardians must act in the always act jointly which means their decisions must be unanimous and in the best interests of their Appointor. As such, it is important that you carefully choose your guardians as they must be able to cooperate together and properly serve your interests.

  1. When does the EPG take effect?

An EPG only takes effect in circumstances where the Appointor is incapacitated and incapable of making their own decisions.

How HHG Legal Group can help?

There are specific rules around the preparation and signing of EPAs and EPGs. As such, they should be prepared and witnessed by a suitably qualified professional. At HHG Legal Group we can help you through this process and cater the EPA and EPG to your specific circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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