What is an Enduring Power of Attorney?
Enduring Powers of Attorney enable a person over the age of 18 years (the donor) to appoint a person or agency of their choice (the donee) to make financial and legal decisions on their behalf. The rules governing Enduring Powers of Attorney are set out in Part 9 of the Guardianship and Administration Act WA (1990).
What is the difference between Enduring Powers of Attorney and a general Power of Attorney?
Enduring Powers of Attorney are distinct from Powers of Attorney generally. A general Power of Attorney may have a limited period of duration, and in any event will cease upon the donor losing mental capacity. Enduring Powers of Attorney will continue to have effect whatever your mental capacity. You can appoint:
• a sole Attorney: a single person or agency
• joint Attorneys: two people who must act together and agree on all decisions that are made, or
• joint and several Attorneys: two people who can make decisions together and/or independently.
If your Attorneys are able to act separately, the Enduring Powers of Attorney will continue even when one of the Attorneys can no longer act. If you appoint your Attorneys to act jointly only, then upon the death or incapacity of one of the Attorneys, the other Attorney automatically loses their power to make decisions on your behalf. In Western Australia, you can appoint a maximum of two Attorneys.
What CAN’T Enduring Powers of Attorney do?
Enduring Powers of Attorney cannot be used to appoint someone to make personal, lifestyle or treatment (medical and health care) decisions on your behalf.
The highest document you can sign in relation to medical decisions is an Advanced Health Directive. This document allows you to provide or withhold consent for specific health care, medical, surgical or dental treatments or procedures, including life-sustaining measures and palliative care.
If you want to appoint a specific person to make these kinds of decisions on your behalf, you may want to make Enduring Powers of Guardianship. Without Enduring Powers of Guardianship, medical professionals will automatically turn to the following persons (in order of priority) to make decisions on your behalf:
1. Firstly, your spouse or de facto partner;
2. Secondly, your children over the age of 18;
3. Thirdly, your parents; or
4. Fourthly, your siblings.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our experienced Wills & Estates team on Freecall 1800 609 945 or email us now.
