34 things you should knowabout Enduring Power of   Attorney in Western         Australia
DisclaimerThe material in this presentation does not constitute legaladvice.This presentation has been produced by Tan & T...
What is an Enduring Power of                Attorney?  an Enduring Power of Attorney (EPA) is a legal agreement made by ...
What is the difference between an     EPA and a Power of Attorney? a Power of Attorney is valid so long as the donor is s...
Why should I make an EPA? loss of legal capacity can be sudden not possible to predict the onset of mental disability p...
Who can give an EPA? anyone who is 18 years of age or older has full legal capacity
Who should I appoint as my attorney? you can appoint anybody over 18 years of age and with legal capacity someone you c...
How many attorneys can I appoint? sole attorney two joint attorneys – acting together two joint and several attorneys –...
What if my attorney/s is no longer         suitable or available? to reduce the likelihood of having no attorney appoint...
What can go wrong? no supervision of attorney abuse of attorney’s powers financial loss suffered by donor lack of ment...
How do I make an EPA? you need to be of sound mind you need to decide who to appoint decide on any conditions or restri...
How many originals do I need? one original for the donor second original for the attorney Landgate retains an original...
What if there is no EPA? application to the State Administrative Tribunal (SAT) any person can apply SAT will determine...
What are the limits of the attorney’s                 powers? make a will on behalf of the donor; make personal, lifesty...
Can I limit the decision making power           of my attorney?   yes, however you should seek legal advice
How does my attorney/s accept their             appointment? sign statement of acceptance on the reverse of the EPA as ...
When does my Attorney’s      appointment come into effect?  two witnesses who are 18 years of age or older both witnesse...
Does the EPA continue to be in force       after the death of the donor?  the death of the donor automatically cancels th...
What are my obligations as an               attorney? protect the interests of the donor keep and preserve accurate reco...
What to do if I am in doubt about my decision making authority as an              attorney?   apply to SAT for directions
What orders can I seek from SAT as              an attorney? cancel an EPA vary the terms of an EPA appoint a substitut...
How can I give up my attorney’s              authority? if donor has capacity advise them in writing if donor has lost c...
Who should witness the donor’s              signature?  two witnesses who are 18 years of age or older both witnesses mu...
What are my obligations as a witness            of an EPA? identify the donor be present when the donor signed the EPA ...
Who has legal capacity? understand the main consequences of a decision; able to take responsibility for making a choice;...
What should I do with my EPA when           I have completed it? give a certified copy to all relevant people if you own...
How can I cancel an EPA when with     full mental capacity as the donor? write a letter cancelling (revoking) the EPA gi...
Who can cancel an EPA? donor if still with full mental capacity SAT
Is an EPA signed interstate or          overseas valid in WA? State legislation regulates EPAs the attorney may apply to...
Can I protect assets interstate with a         Western Australian EPA? variation in requirements for EPA sign an EPA in ...
Does a divorce automatically cancel an                EPA? a divorce doesn’t cancel an EPA between spouses an EPA must b...
Does a subsequent EPA automatically       cancel an earlier EPA? a subsequent EPA does not cancel an earlier EPA an EPA ...
What to do if concerned about       attorney’s performance? seek an order from SAT for attorney to provide all recordsand...
What to do if the attorney becomes                bankrupt? the donor should cancel the EPA report the bankruptcy to SAT...
What happens if the donor becomes              bankrupt?   The donor’s estate vests in the trustee in bankruptcy
Does an EPA attract stamp duty? Power of attorney including EPA is exempt from stampduty
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Enduring power of attorney in Western Australia

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Enduring power of attorney in Western Australia

  1. 1. 34 things you should knowabout Enduring Power of Attorney in Western Australia
  2. 2. DisclaimerThe material in this presentation does not constitute legaladvice.This presentation has been produced by Tan & Tan Lawyersand has been prepared as general information about EnduringPower of Attorney. It is not intended to provide legal adviceand, as such, the content does not constitute legal advice. Useof this presentation does not create any solicitor-clientrelationship between the user and Tan & Tan Lawyers.
  3. 3. What is an Enduring Power of Attorney? an Enduring Power of Attorney (EPA) is a legal agreement made by choice enables a person(donor) to appoint a trusted person as theirattorney gives power to attorney to make financial and propertydecisions.
  4. 4. What is the difference between an EPA and a Power of Attorney? a Power of Attorney is valid so long as the donor is stillcapable of making decisions under the EPA an attorney can act even after the donorloses their legal capacity
  5. 5. Why should I make an EPA? loss of legal capacity can be sudden not possible to predict the onset of mental disability protect your financial interests appoint an attorney you can trust
  6. 6. Who can give an EPA? anyone who is 18 years of age or older has full legal capacity
  7. 7. Who should I appoint as my attorney? you can appoint anybody over 18 years of age and with legal capacity someone you can trust someone who will make decisions in your best interests someone who is willing to take on the responsibility
  8. 8. How many attorneys can I appoint? sole attorney two joint attorneys – acting together two joint and several attorneys – acting independently ortogether. maximum of two attorneys
  9. 9. What if my attorney/s is no longer suitable or available? to reduce the likelihood of having no attorney appoint a sole substitute attorney or two joint substitute attorneys or two joint and several substitute attorneys Seek legal advice if appointing two attorneys in substitution of two original attorneys
  10. 10. What can go wrong? no supervision of attorney abuse of attorney’s powers financial loss suffered by donor lack of mental capacity of donor question of validity of EPA
  11. 11. How do I make an EPA? you need to be of sound mind you need to decide who to appoint decide on any conditions or restrictions decide when the power will be in force have your lawyer check and witness the EPA
  12. 12. How many originals do I need? one original for the donor second original for the attorney Landgate retains an original other institutions may wish to retain original
  13. 13. What if there is no EPA? application to the State Administrative Tribunal (SAT) any person can apply SAT will determine if loss of capacity SAT may appoint an administrator the administrator could be anyone
  14. 14. What are the limits of the attorney’s powers? make a will on behalf of the donor; make personal, lifestyle or treatment decisions do any act which is illegal; deal with any property held in trust by the donor perform the functions of a director or secretary of acompany on behalf of the donor unless authorised by theconstitution of the company; delegate their authority.
  15. 15. Can I limit the decision making power of my attorney? yes, however you should seek legal advice
  16. 16. How does my attorney/s accept their appointment? sign statement of acceptance on the reverse of the EPA as soon as practicable after signing by donor
  17. 17. When does my Attorney’s appointment come into effect? two witnesses who are 18 years of age or older both witnesses must have full legal capacity at least one witness must be an authorised witness a person who is not an authorised witness cannot be an theattorney
  18. 18. Does the EPA continue to be in force after the death of the donor? the death of the donor automatically cancels the EPA the provisions in the Will come into force if no Will the provisions of the Administrative Act comeinto force
  19. 19. What are my obligations as an attorney? protect the interests of the donor keep and preserve accurate records and accounts report to SAT if I become bankrupt
  20. 20. What to do if I am in doubt about my decision making authority as an attorney? apply to SAT for directions
  21. 21. What orders can I seek from SAT as an attorney? cancel an EPA vary the terms of an EPA appoint a substitute attorney confirm appointment of substitute attorney directions about decision making authority
  22. 22. How can I give up my attorney’s authority? if donor has capacity advise them in writing if donor has lost capacity you may not give up the powers if donor has lost mental capacity apply to SAT
  23. 23. Who should witness the donor’s signature? two witnesses who are 18 years of age or older both witnesses must have full legal capacity at least one witness must be an authorised witness a person who is not an authorised witness cannot be an theattorney
  24. 24. What are my obligations as a witness of an EPA? identify the donor be present when the donor signed the EPA initial any amendments made to EPA decline to witness if in doubt about donor’s legal capacity decline to witness if donor appears under duress
  25. 25. Who has legal capacity? understand the main consequences of a decision; able to take responsibility for making a choice; and able to make a choice based on the risks and benefits
  26. 26. What should I do with my EPA when I have completed it? give a certified copy to all relevant people if you own real estate lodge EPA with Landgate keep a list of who you have provided a copy of your EPA keep the original in a safe place tell your attorney where the original is kept
  27. 27. How can I cancel an EPA when with full mental capacity as the donor? write a letter cancelling (revoking) the EPA give letter to attorney and all other relevant parties register cancellation with Landgate collect all copies of your EPA destroy all copies of your EPA
  28. 28. Who can cancel an EPA? donor if still with full mental capacity SAT
  29. 29. Is an EPA signed interstate or overseas valid in WA? State legislation regulates EPAs the attorney may apply to SAT seek an order recognising the EPA in WA if satisfied SAT will make the order
  30. 30. Can I protect assets interstate with a Western Australian EPA? variation in requirements for EPA sign an EPA in the jurisdiction where the assets are held seek legal advice for the particular jurisdiction
  31. 31. Does a divorce automatically cancel an EPA? a divorce doesn’t cancel an EPA between spouses an EPA must be cancelled in writing
  32. 32. Does a subsequent EPA automatically cancel an earlier EPA? a subsequent EPA does not cancel an earlier EPA an EPA must be cancelled in writing
  33. 33. What to do if concerned about attorney’s performance? seek an order from SAT for attorney to provide all recordsand accounts seek an order from SAT for records and accounts to beaudited seek any of the orders that an attorney may seek from SAT inform Landgate of any concerns in writing inform all other relevant persons or bodies
  34. 34. What to do if the attorney becomes bankrupt? the donor should cancel the EPA report the bankruptcy to SAT if loss of legal capacity SAT can make an order cancelling the EPA
  35. 35. What happens if the donor becomes bankrupt? The donor’s estate vests in the trustee in bankruptcy
  36. 36. Does an EPA attract stamp duty? Power of attorney including EPA is exempt from stampduty

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