Our speaker for Workshop 5 - Wills, enduring powers of guardianship and enduring powers of attorney, held on 17 February, was Kerry Smart. Kerry has 40 years’ experience as a corporate and commercial lawyer and is now on the board of Future Living, whose mission is to enable families of people with developmental disability to plan and implement services that enhance their quality of life and provide a long-term secure future. Throughout his career Kerry has seen the uncertainty, strife and unhappiness that can be caused by the failure to plan for our own deaths. Wills, EPGs and EPAs are an integral part of that and the sessions were interesting and of great practical value. You can view the presentations in PDF format using the links below and also video of the presentation.
Kerry Smart Presentation - Wills
Kerry Smart - Presentation on EPGs and EPAs
Wills and Estate Planning - Your essential checklist
You can watch the video of Workshop 5 below.
1. What are the essential differences and similarities between an enduring power of guardianship (EPG) and an enduring power of attorney (EPA)?
EPG: You can sign an EPG if you are an adult (18 or older) and have the capacity to understand the statements contained in the EPG. Under this document you authorise a person of your choice (your enduring guardian) to make important personal, lifestyle and treatment decisions on your behalf. Unlike an EPA, an EPG only comes into effect once you have lost the capacity to make those decisions for yourself.
You cannot authorise your enduring guardian to make financial or property decisions on your behalf.
If you have a valid advance health directive (AHD) in place at the time you lose capacity your enduring guardian cannot override the treatment decisions in the AHD but may assist your health professionals to interpret your AHD if the treatment decisions and the circumstances in which they will apply are not clear and unambiguous.
For this reason it is important that you choose as your enduring guardian a person who knows you well and understands and respects your values and choices even if he or she does not agree with them.
EPA: As for an EPG you must be an adult and have full legal capacity to make an enduring power of attorney (EPA) or a normal power of attorney (PA). You may also revoke a PA or EPA at any time provided you have capacity.
Under both these powers of attorney you can appoint a person (referred to in these notes as the attorney) to do anything on your behalf that you are capable of doing for yourself, such as opening a bank account, buying property or managing your financial affairs generally.
The difference between the two is that a PA automatically ceases to be effective if you lose the legal capacity to act on your own behalf, whereas an EPA continues to be effective even after you have lost capacity.
You cannot authorise your attorney to make personal, lifestyle and treatment decisions on your behalf.
It is important that the person you choose as your attorney is trustworthy and likely to always act in your best interests. You can revoke an EPA at any time provided that you still have the capacity to understand the nature and effect of this action.
Under an EPG you may appoint a sole enduring guardian or more than one person to act as joint enduring guardians. This means that they must act together and agree on all decisions to be made, which may cause problems.
Under an EPA you may appoint a sole attorney or a maximum of two people to act jointly or jointly and severally. A ‘joint and several’ appointment means that the attorney may act either together or independently of each other.
You determine the scope of the authority you wish to give your attorney or guardian under these documents.
2. What happens if there is doubt about your capacity to sign an EPG or EPA?
If you believe there is any chance of your mental capacity in relation to an EPG or EPA may be questioned, you should ask a doctor qualified to make this assessment to provide you with a certificate.
If you are assessed as having the legal capacity to sign an EPG or EPA it is advisable:
- that the doctor who made the assessment be one of the two witnesses to your EPG or EPA (this is not so important for a PA);
- that you make the EPG or EPA as soon as possible after having the capacity assessment; and
- that you keep the copy of the doctor’s assessment of your capacity with the EPG or EPA to ensure that everyone is aware that you had capacity to make these documents
3. What happens if I am certified as not having capacity or if I lose capacity without having signed an EPG or EPA?
As stated in 1 above you must have legal capacity to sign an EPG or EPA. There is a presumption that you have capacity in the absence of evidence to the contrary but if you signed either an EPG or EPA while not having capacity the document will be invalid.
If you do not have a valid EPG and lose capacity then an application may be made [BY WHOM???] to the State Administrative Tribunal (SAT) to appoint a plenary guardian who will have full power to make all decisions about how and where you live and who you associate with, whether you work and where, your health care, conduct legal proceedings on your behalf and so on. A plenary guardian cannot make financial and property decisions for you.
[If you do not have a valid EPA who takes control of financial and property affairs?]
4. Can I appoint the same person as my enduring guardian and my enduring attorney?
Yes provided you use the correct form and comply with the requirements of each.
5. Do I need help to complete an EPG or EPA?
The EPG form is a straight-forward document that most people will be able to complete without legal or other assistance. The Office of the Public Advocate has produced a guide and kit that contain step-by-step instructions and a sample of a completed form is also available as a reference. If you need further help you can speak to an advisory officer from the Office of the Public Advocate's Telephone Advisory Service (see also 15 below).
An EPA is a more complicated document because it contains more variables and it would be helpful to get legal assistance to complete it. The Public Advocate provides a telephone advisory service (1300 858 455) that provides information about EPAs. (See also 15 below).
6. What happens if my mental capacity fluctuates?
EPG: In these circumstances, your enduring guardian is able to assume decision-making responsibility during times when you are unable to make decisions for yourself, and then when you recover your enduring guardian will stop making decisions as you are able to make these for yourself.
EPA: Under an EPA it will depend on the terms of the document. You may either authorise your attorney to make decisions for you only when you do not have the capacity to make them for
yourself, or to make them at any time whether or not you have mental capacity.
7. What are the witnessing requirements when making an EPG and EPA?
Both an EPG and an EPA must be signed in the presence of two adult witnesses, one of whom must be an authorised witness under the Oaths, Affidavits and Statutory Declarations Act 2005. The Act provides a list of authorised witnesses. Witnesses must provide their full names, addresses (a street address is preferable to a PO Box number) and occupation. The role of the witness is to verify the identity of the person signing the document, not to assess capacity, although if a witness has doubts about capacity he or she should consider whether they wish to be a witness.
A person named as the enduring guardian in the EPG or as the attorney in the EPA cannot also be a witness.
8. Can an enduring guardian or attorney delegate their authority to someone else?
EPG: No. An enduring guardian who is unwilling or unable to continue in the role may resign and, provided the appointor still has capacity, a new enduring guardian can be appointed.
If the appointor has lost capacity, the enduring guardian will need to apply to SAT to be removed from the role and a new enduring guardian to be appointed if required.
EPA: The attorney may delegate authority only if and in accordance with the terms of the EPA.
9. What are the other processes for someone who cannot make an EPG?
When a treatment decision is needed for a person who has lost capacity the following hierarchy of decision making applies under the Guardianship and Administration Act 1990: Hierarchy (PDF)
For other types of personal and lifestyle decisions there is no list, but if informal processes are working well, everyone agrees about the decisions which need to be made and everybody agrees on the decision then no formal appointment of a guardian is needed.
In the Guardianship and Administration Act 1990 this ‘informal process’ is called the ‘least restrictive alternative’ which allows the right decisions to be made for the person without a guardianship order.
10. What happens if the informal processes break down?
If the informal processes are not working or break down for any reason an application to SAT would need to be made for the appointment of a guardian.Does my role as an enduring guardian under an EPG or attorney under an EPA continue after the person making the appointment dies?
No, both come to an end immediately upon the death of the appointor and the provisions of the person’s will take over. If there is no will then the laws of intestacy apply.
11. Does marriage or divorce, or starting or terminating a de facto relationship invalidate an EPG or EPA?
No. The appointor will need to revoke the EPG or EPA in these circumstances if they wish to change its terms.
12. Does an EPG or EPA need to be stamped or registered in order to be valid?
No, there is no register for either of these documents so you should ensure that all relevant people are provided with an original or duly certified copy.
However, if you want your attorney under a PA or EPA to deal with property you must register an original of that document with Landgate within three months of making it so that the authority of your attorney in relation to that property will be recognised. (Landgate is the State Government authority which maintains the register of land ownership in WA). If you revoke the PA or EPA notice of revocation must be lodged with Landgate.
13. How do I revoke an EPG or EPA
Provided you still have legal capacity, you can revoke an EPG or EPA at any time. The revocation must be in writing but there are no prescribed form or witness requirements. You should inform your enduring guardian, your attorney and all other relevant people and agencies, preferably in writing. You should keep a copy of your written revocation together with a list of all people and agencies to which you have sent it.
14. Where can I get an EPG and EPA kits and forms?
EPG kits and guides can be read online or downloaded free of charge using the proceeding links. The EPG form, found in the back of the kit (pdf version), can be printed by selecting Print form.
EPA kits and forms are available via this link in the Download section at the foot of the page: