Enduring Powers of Attorney

by admin. Posted in For Buyers, For Sellers, Legal

blog-powerofattorney-cartoon

An Enduring Power of Attorney (EPA) is a legal document granting rights from one person (the donor) to another person (the donee or attorney) to make decisions (financial and or property decisions) on behalf of the donor.

Important Notice

This document is a brief overview of Enduring Powers of Attorney and should not be considered to be legal advice. If you are considering appointing an attorney, you should click on the link at the bottom of this article to be re-directed to the Office of the Public Advocate and you should thoroughly read the “Enduring Power of Attorney Information Kit” and/or seek legal advice.

Enduring Powers of Attorney

By appointing an attorney, your financial and property issues can be managed despite any incapacity that you may encounter. You can elect for your EPA to come into effect:

  • immediately (for example if you work away and cannot attend to such matters personally) or;
  • only during times of your legal incapacity (for example during ill health).

If the second option above applies, then the State Administrative Tribunal determines whether you have lost your legal capacity.

This is where an EPA differs from an ordinary Power of Attorney, in that it can continue to be used despite your legal incapacity. An ordinary Power of Attorney ceases to have any effect once you lose your legal capacity.

You can appoint an attorney to act for you if:

  1. You are 18 years of age or over,
  2.  You have full legal capacity.

Likewise, you can act as an attorney if:

  1. You are 18 years of age or over,
  2. You have full legal capacity.

The ability to read, write or sign in the English language does not prevent a person from appointing an attorney, however it must be read to the donor by an accredited interpreter. Care must be taken to ensure that the documents are executed correctly (including an explanatory clause known as a “readover clause”).

Given that your attorney can make important decisions on your behalf, there are a number of things to consider when appointing someone to act as your attorney, including:

  1. Is the person willing to take on this responsibility,
  2. Is this person trustworthy and likely to act in my best interests,
  3. Is this person capable of taking on this responsibility and capable of dealing with your property and financial matters, including keeping proper records,
  4. Is this person in close proximity to assist with such matters,
  5. If I appoint joint attorneys (detailed further in this article), will they be able to work together,
  6. Would my choice cause conflict within my family.

An attorney can be appointed by completing an Enduring Power of Attorney Form which can be found as part of the “Enduring Power of Attorney Information Kit” linked to this article. The kit also contains comprehensive instructions on completing the EPA forms.

You can opt to have a sole attorney or more than one attorney to act on your behalf. This option is made on the EPA document.

If you opt to have more than one attorney (joint attorneys) you must further elect whether these attorneys act jointly (ie. they must act together and agree on the decisions that are made) or jointly and severally (where your attorneys can act together or independently of one another).

Completed certified copies of your EPA should be given to any relevant family members (including your appointed attorney) and your solicitor. The original should be stored in a safe place.

You should also keep a list of any person that you have given a certified copy of the EPA to so that if you decide to revoke the EPA, you can notify them.

If your attorney is required to deal with your real estate, the completed EPA should be lodged at Landgate The EPA must be lodged at Landgate within three months of execution otherwise your attorney will be required to complete a Statutory Declaration stating that the EPA has not been revoked. Landgate charge a registration fee of $160.00 for lodgement and processing of the EPA.

An EPA can be cancelled at anytime, provided that you have legal capacity. This revocation should be made in writing and a copy of the letter should be given to your attorney. It is recommended that you collect all certified copies that you previously circulated so that they can be destroyed. If your attorney is no longer willing to act for you and you still have legal capacity, then written renouncement should be provided to you by your attorney and the same process described above should be followed.

Office of the Public Advocate – How to get an EPA kit