You may not be able to predict the future, but you can prepare for it. What would happen if you lost capacity to make your own decisions or became physically unable to manage your affairs?
In Western Australia, three separate documents cover this: an Enduring Power of Attorney (EPOA) for money, an Enduring Power of Guardianship (EPOG) for personal decisions and an advance health directive for medical treatment. A Will covers none of them.
The three documents
| Document | Covers | Who acts | Made under |
|---|---|---|---|
| Enduring Power of Attorney | Financial and property decisions | Your attorney | Guardianship and Administration Act 1990 (WA) |
| Enduring Power of Guardianship | Personal, lifestyle and treatment decisions | Your guardian | Guardianship and Administration Act 1990 (WA) |
| Advance health directive | Your own treatment decisions, recorded in advance | Nobody, the directive speaks for you | Guardianship and Administration Act 1990 (WA) |
What an Enduring Power of Attorney does
Your attorney deals with money and property. Bank accounts, bills, Centrelink, the ATO, investments and the sale or lease of real estate.
You choose when it starts: either immediately, or only once the State Administrative Tribunal declares that you have lost capacity. You can appoint more than one attorney and require them to act jointly.
You do not have to lose capacity for an EPOA to be useful. Where the power starts immediately, your attorney can act while you are overseas, in hospital, or simply unable to get to a bank. Losing capacity is one reason to have one, but being unable to deal with your own affairs for any other reason is another.
An attorney cannot make medical or lifestyle decisions and cannot make or change your Will.
What an Enduring Power of Guardianship does
Your guardian makes personal and medical decisions. This includes things like where you live, who you have contact with, what support services you receive and, subject to any advance health directive, decisions about your treatment.
It operates only if you lose capacity. It cannot start immediately.
What an advance health directive does
An advance health directive records your own treatment decisions in advance, so they apply directly rather than through another person. It carries weight where you have views about life-sustaining treatment, resuscitation or the point at which you would want treatment withdrawn.
Where you have both a directive and a guardian, the directive generally governs the treatment decisions it covers. You can access the form via the WA Department of Health.
You cannot use it to record organ or tissue donation wishes or anything about voluntary assisted dying.
How these documents must be signed in WA
These are Western Australian instruments made under Western Australian legislation. Each has its own form and its own signing and witnessing requirements. None of them can be signed online.
What happens if you have none of them
If you don’t have an EPOA or EPOG and need someone to make decisions for you, your family will need to apply to the State Administrative Tribunal. The Tribunal will appoint an administrator for financial decisions, a guardian for personal decisions, or both. Where the family can’t agree or there is no suitable person, the Tribunal can appoint the Public Trustee or the Public Advocate.
That means the decisions get made, but it also means they are made by people you did not choose, after a delay, at a cost to your estate.
When to make them
While you have capacity. You cannot make any of the three once capacity is lost.
We prepare your EPOA and EPOG alongside your Will in a single appointment. We do not prepare advance health directives. The form is published by the WA Department of Health and is designed to be worked through by you with your doctor rather than drafted by a lawyer. We will tell you where to find it and how it fits with your EPOG.
Frequently asked questions
Do I need all three documents?
An EPOA and an EPOG cover the two decision-making gaps and most people should have both. An advance health directive matters most where you hold specific views about treatment you would refuse or would like to receive.
Can my attorney and my guardian be the same person?
Yes and they often are. They can also be different people, which suits families where one adult child handles money well and another is closer to the day-to-day care.
Do these documents expire?
No. They continue until you revoke them while you have capacity or until your death.
Does an Enduring Power of Attorney need to be registered?
It must be lodged with Landgate before your attorney can deal with land in Western Australia. You don’t need to register it straight away and your attorney can register it in the future if they need to use it for land.
Get all documents done at once
We prepare a Will, an Enduring Power of Attorney and an Enduring Power of Guardianship together at a fixed price. See the current prices on our enduring power of attorney and guardianship page.
Book an appointment or call the Wills team on (08) 9220 4433.
Related: Estate planning trap no. 7 – failing to make an Enduring Power of Attorney
This article is general information and not legal advice.