Checklist for preparing an enduring power of attorney

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Checklist for preparing an enduring power of attorney

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Checklist for preparing an enduring power of attorney

  1. 1. CHECKLIST FOR PREPARING AN ENDURING POWER OF ATTORNEY IN WESTERN AUSTRALIA DisclaimerThe author of this checklist has assumed that lawyers will exercise theirprofessional judgement with respect to the correctness and applicability ofthe material.This checklist should be used only as an initial reference point. Reliance onthis checklist to the exclusion of other resources is irresponsible, as conductof each file depends on its own particular circumstances and instructions ofthe client.This checklist should be used only as a secondary reference. For definitiveanswers, lawyers should refer to applicable statutes, regulations, practicedirections and case law.The author of this checklist accepts no responsibility for any errors oromissions, and expressly disclaims any such responsibility.Checklists are generally used for the purposes of protecting your client’sinterests and managing professional liability risks. 1
  2. 2. Actions Tick or N/A1 I identified the donor of the enduring power of attorney (EPA).2 I took a copy of the identification document.3 I kept the copy of the identification document on file.4 I checked that the donor is 18 years or older.5 I documented the scope and limits of my retainer.6 I obtained a signed copy of the retained by the donor of the EPA.7 I provided the client with a short presentation on the giving of EPA in Western Australia.8 I took instructions from the donor in person and recorded them.9 DOUBTS ABOUT CAPACITY After questioning the donor for the purpose of establishing capacity I formed the view that the donor may have impaired capacity. I considered the involvement of medical staff for an opinion as to capacity and referred the donor to a medical practitioner for assessment. I informed the medical practitioner in my referral letter about the standard that the law requires in relation to capacity for EPA.10 A current medical certificate was produced to me which stated that the donor has capacity. I have attached a copy of the medical certificate to these notes.11 I asked the donor if they understood the nature and extent of their estate and recorded their answer. 2
  3. 3. 12 I explained to the donor the type of financial and property decisions that their attorney is authorised to make.13 I explained to the donor the effect of the transactions that an EPA will enable.14 I asked the donor if they were signing the EPA freely and voluntarily and recorded their answer.15 I explained to the donor that the attorney’s stewardship will not be monitored.16 I explained to the donor that it is for them to consider the proposed attorney’s integrity, financial acumen, and availability and what the risk associated with making the wrong choice are.17 I explained to the donor that the powers that they were giving could be abused by their attorney. I asked the donor to state in their own words what they understood the risks of giving an EPA to be and recorded their answer.18 I explained to the donor that once the EPA comes into force the attorney will be able to assume complete authority over the donor’s financial affairs and be able to do anything with the donor’s property that the donor could have done, subject to any limitations and conditions in the EPA. I asked the donor to explain what they understood about the attorney’s powers after the EPA comes into effect and recorded their answer. 3
  4. 4. 19 I explained to the donor that they can specify when the EPA comes into force and the effect of their choice on the attorney’s authority. I asked the donor to explain what they understood their options to be in choosing a start date for the EPA and recorded their answer.20 I discussed with the donor the limitations and conditions that the donor instructed me to include in the subject EPA. I asked the donor to explain to me what they understood the limitations or conditions on the powers of the attorney to be and recorded their answer.21 I explained to the donor how they can cancel the EPA as long as they had the legal capacity to do so. I explained to the donor that if the donor lost legal capacity they could not cancel the EPA or appoint a new attorney. I asked the donor to explain what they understood about cancelling an EPA before and after loss of capacity and recorded their answer.22 I explained to the donor that if they should lose capacity their attorney’s powers will be irrevocable unless the State Administrative Tribunal (SAT) orders otherwise. 4
  5. 5. 23 I explained to the donor that their attorney can continue to deal with their financial affairs after the donor becomes mentally incapable. I asked the donor to explain what they understood the attorney could do in case the donor lost legal capacity and recorded their answer.24 The donor changed radically their instructions. I questioned the donor about the reasons and recorded their answer.25 I checked that the witnessing was completed correctly.26 I obtained a certificate signed by the interpreter. I attached the interpreter’s certificate to these notes.27 I placed this checklist on the client’s file.28 The law firm has safeguards in place ensuring that this checklist will never be destroyed. 5

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