An Enduring Power of Attorney, or EPOA, lets you appoint someone you trust to make financial and property decisions for you if you lose capacity. Without one, nobody in your family has authority to do this for you and they must apply to the State Administrative Tribunal for an administration order. Doing so can take months and may mean your affairs are managed by someone you wouldn’t choose.
A cautionary tale from our files
Our client’s mother went overseas on a cruise. The Greek Islands. Midway through the cruise she had a stroke, became incapacitated and ended up in a hospital on the mainland.
She had two daughters and a partner.
There was an urgent need to get access to her money to pay for her medical treatment and to fly her home to Australia. She hadn’t made an Enduring Power of Attorney, so:
- nobody knew who was in charge of her affairs; and
- it wasn’t possible to find out how much money she had in the bank, to operate her accounts or to sell her assets.
This meant no one could access her money to pay for her medical care.
Our client had to fly to Greece and bring her mother home, at great emotional and financial expense and with no access to her money to pay for her care.
Had her mother made an EPOA, the appointed attorney could have accessed her financial information and paid for medical care quickly. It would have made a distressing situation a great deal easier.
Everyone should make an EPOA.
Why your Will doesn’t help
A Will operates from the date of death. While you are alive it does nothing at all, and your executor has no authority to act for you. People assume the two documents overlap. They do not.
| Enduring Power of Attorney | Will | |
|---|---|---|
| When it operates | While you are alive, once you lose capacity | After you die |
| Who acts | Your attorney | Your executor |
| What it covers | Financial and property decisions | Distribution of your estate |
| Covers medical and lifestyle decisions | No, that is an Enduring Power of Guardianship | No |
What happens if you have no Enduring Power of Attorney
Your family can’t simply take over. Being a spouse or an adult child gives no legal authority to deal with someone else’s assets.
Somebody has to apply to the State Administrative Tribunal (SAT) for an administration order under the Guardianship and Administration Act 1990 (WA). Until that order is made:
- the bank will not let anyone operate accounts in your sole name;
- your house cannot be sold or leased, including to fund aged care; and
- your bills don’t get paid unless someone pays them from their own money.
If the family cannot agree, or where there is no suitable person, the SAT can appoint the Public Trustee as administrator. The Public Trustee charges fees on the estate for that work, and your family has no say in the decisions.
When should you make an EPOA?
While you have capacity. That is the only time you can. Once capacity is lost the option is gone, and the SAT route is the only one left.
Capacity can go without warning and at any age. Stroke, head injury, an accident overseas. Dementia is the case people think of, but it’s not the only one.
What can your attorney do?
Your attorney can take care of financial and property decisions, which can include operating your bank accounts, paying your bills, dealing with Centrelink and the ATO, selling or leasing property and managing investments.
You choose whether the power starts immediately or only on loss of capacity. You can appoint two or more attorneys and require them to act jointly, so that no one person acts alone.
Your attorney cannot make medical, lifestyle or living arrangement decisions. That requires an Enduring Power of Guardianship.
Frequently asked questions
Can I make an EPOA after a dementia diagnosis?
It depends on whether you still have capacity to understand the document, which is a question of fact at the time of signing. A diagnosis alone does not automatically prevent it. Get advice early rather than late.
Does my spouse need an EPOA if we own everything jointly?
Yes. A jointly owned house cannot be sold by one owner if the other has lost capacity, other than by someone acting as attorney under an EPOA or as an administrator appointed by the SAT.
Can I use an online power of attorney form?
No. A WA EPOA must be made in a particular form and needs to comply with strict signing and witnessing requirements. It can’t be signed online.
Does an Enduring Power of Attorney let someone change my Will?
No. An attorney cannot make or change a Will for you.
Get it in place
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: EPOA and EPOG in WA: who makes decisions if you lose capacity
This article is general information and not legal advice.
