Enduring Power of Attorney in Western Australia: The FAQs

1. What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney (EPA) is a legal document that allows you (the donor) to appoint a trusted person or persons (the attorney(s)) to manage your legal, financial and property affairs. Unlike a general power of attorney, an EPA remains effective even if you lose capacity to make decisions.

2. Why is an EPA important?

An EPA ensures that someone you trust can make legal, financial and property decisions on your behalf if you become unable to manage your affairs due to illness, injury, or cognitive decline. Without an EPA, the State Administrative Tribunal may appoint someone to manage your affairs, which can be complex, costly, and time-consuming.

3. What can an attorney do under an EPA?

The appointed attorney can manage tasks such as:

  • Executing legal documents

  • Managing bank accounts

  • Paying bills

  • Selling or buying property

  • Managing investments

Important: An EPA does not cover personal, lifestyle, or healthcare decisions. These require an Enduring Power of Guardianship (EPG).

4. When does an EPA take effect?

You can choose when your EPA takes effect:

  • Immediately: Your attorney can act on your behalf as soon as the document is signed (this means you do not necessarily need to lose cognitive capacity for your nominated attorney to act).

  • Upon loss of capacity: The attorney’s authority begins only when you are deemed unable to make decisions by the State Administrative Tribunal.

We recommend consulting a legal professional if you are unsure which option suits your circumstances.

5. Who can I appoint as my attorney?

You can appoint a trusted individual, such as a family member, friend, or professional (like an accountant or lawyer). The person must:

  • Be over 18 years old

  • Have full legal capacity

  • Not be bankrupt or insolvent

Choose someone who will act in your best interests and has the skills to manage your financial affairs.

6. Can I appoint more than one attorney?

You can appoint a maximum of two (2) primary attorneys. You can specify if these primary attorneys must act:

  • Jointly: This means that all attorneys must agree on every decision.

  • Jointly and severally: This means that each attorney can make decisions independently or together.

7. Does my EPA need to be registered at Landgate?

Registration of your EPA at Landgate (Western Australia’s land registry office) is not mandatory unless you anticipate that your nominated attorney(s) may need to manage real estate (that you own solely or jointly) transactions on your behalf.

The might include:

  • Entering into real estate sale contracts on your behalf;

  • Selling on your behalf;

  • Leasing on your behalf;

  • Mortgaging property on your behalf.

It is important to note that without registration, your attorney(s) cannot manage real estate transactions in the event that you lose cognitive capacity.

For more information on the registration process, we recommend consulting directly with Landgate or seeking legal advice.

8. How do I register my EPA at Landgate?

To register your EPA at Landgate, you must complete the necessary forms and submit them to Landgate with the required fee. For assistance, we recommend seeking legal advice to ensure the process is completed correctly.

9. Can I revoke my EPA?

Yes, provided you have legal capacity, you can revoke your EPA at any time. To do so:

  1. Complete a Revocation of Enduring Power of Attorney form.

  2. Notify your attorney(s) in writing.

  3. If registered at Landgate, lodge the revocation form with Landgate.

We recommend consulting a legal professional if you need guidance on this process.

10. What happens if my attorney is no longer able to act?

If your attorney cannot act (due to incapacity, death, or other reasons) and no alternate attorney is appointed, your EPA may become invalid. You may need to create a new EPA in such circumstances.

11. Can my attorney be monitored or held accountable?

Yes, attorneys must act in your best interests and can be held legally accountable. If you believe an attorney is acting improperly, complaints can be made to:

  • The State Administrative Tribunal (SAT)

  • The Office of the Public Advocate (OPA)

12. Can an EPA be challenged or disputed?

Yes, disputes may arise if:

  • There are concerns about the validity of the EPA (e.g., undue influence or lack of capacity).

  • The attorney’s actions are believed to be improper or not in the donor’s best interests.

Applications can be made to the State Administrative Tribunal to review or revoke the EPA.

13. What is the difference between an EPA and an EPG?

  • An EPA covers legal, financial and property matters.

  • An EPG (Enduring Power of Guardianship) covers personal, health, and lifestyle decisions.

Both documents can work together to ensure comprehensive protection for your affairs.

14. Can I create an EPA online with Estate Essentials?

Estate Essentials offers an easy-to-use platform to assist you in preparing an EPA tailored for Western Australia. Our guided process helps ensure accuracy and clarity, providing peace of mind that your personal wishes will be documented. We provide step-by-step instructions for signing your EPA with the required witnesses and attorney(s). Customers are encouraged to review their document carefully and seek independent legal advice if unsure about its suitability.

Ready to begin preparing your Enduring Power of Attorney? Click here.

Disclaimer: The information provided in this article is general in nature and does not constitute legal advice. Estate Essentials is not a law firm and does not provide legal services. While we strive to provide accurate and up-to-date information, it may not apply to your specific circumstances or address all potential issues. We strongly recommend consulting an independent legal professional to ensure your estate planning documents meet your unique requirements.