Enduring Power of Attorney (EPA)
for land and financial matters during your lifetime
An EPA is a formal document which gives another person the authority to make decisions on your behalf regarding financial matters and land dealings in Western Australia. As each State has different EPA requirements, if you own land in other States or move to another State, you should consider signing an EPA which meets that particular State’s requirements.
An EPA is a really useful document should you ever become mentally incapacitated or if you are absent for extended periods of time (such as overseas travel or for FIFO workers), as the EPA enables you to specify who is to be in control of your financial affairs. It can also be a really useful document during times of physical incapacity such as a lengthy recovery from surgery.
The person or people you appoint to act for you under your EPA are called “Attorneys”. You can appoint up to two Attorneys to act for you at a time. You can also nominate one or two substitute Attorneys to replace the original Attorneys should they not be able to take on (or continue) the role when needed. This can be anyone you trust who has full legal capacity, is aged at least 18 old and who has not been declared bankrupt.
If you have more than one Attorney, they can act “jointly” or “jointly and severally”. “Jointly” means they must act together. If they can’t agree, the act doesn’t proceed. This can be a really good check-and-balance on your Attorneys to make sure that they make proper decisions in your best interests. It can also give them the assurance of a second opinion with the other Attorney when making any decisions for you. “Jointly and severally” means that the Attorneys can act together or can act on their own. This can be helpful where your Attorneys require flexibility.
Your EPA can be made to come into effect immediately upon signing or only once you have been declared mentally incapacitated. An immediate EPA can be helpful for those who work away for long periods of time, whereas an incapacity-only EPA gives you the reassurance of having an EPA in place for when it’s needed, but also doesn’t allow your Attorneys to make decisions for you whilst you are capable of making your own decisions.
It is also important to remember that the EPA comes to an end when you die. It is not uncommon to find that Attorneys are still relying on the power that comes from the EPA after the person who signed the EPA (the Donor) has died. This is improper. Once you die, the EPA immediately ends and your Will, if you have one, comes into effect.
It is important to remember that it is when you lose capacity that you really need an EPA and it is at that time, that you will no longer have the ability to make one. We can help you with your EPA needs. We prepare Enduring Powers of Attorney, Enduring Powers of Guardianship and Advance Health Directives. Feel free to contact us to make an appointment.
Enduring Power of Guardianship (EPG)
for health and lifestyle matters during your lifetime
An EPG is a formal document which gives another person authority to make decisions on your behalf regarding your healthcare and lifestyle decisions at a time you are unable to make reasonable decisions for yourself. For example, this could be because you are suffering from dementia, had a stroke or are unconscious after a road trauma.
An EPG enables you to appoint a person to make decisions about your care when you cannot. The decision-maker is called the “Guardian” and you can appoint more than one person in the role, for example your adult children. The Guardian(s) must be 18 years of age and have full legal capacity when appointed. If you decide to appoint more than one Guardian, they must be able to work together as any decision made by the Guardians for you must be unanimous.
Once appointed if you lose capacity, the Guardian(s) will be able to decide includes matters such as where you will live (for example, should you be moved in a nursing home and if so, which one?), what education and training you should receive and what medical treatment you should receive.
An EPG cannot be used to authorise your Guardian to make decisions regarding your finances or your land dealings – an EPA is required for this. Using an EPA and an EPG, you can appoint one set of people to look after your financial matters and a different set of people to look after your health/lifestyle choices. It is often the case that the person you would trust to look after your finances is not the same person that you would trust to make decisions for you in relation to your health and well being.
If you have also signed an Advance Health Directive (AHD) (the document where you decide which treatments you will and won’t accept at a time you cannot give instructions for yourself), then the directions in your AHD must be followed before the medical professionals consult your Guardian, as your AHD is the document which must be followed first. If you have an AHD and there is a life/medical decision that needs to be decided on a matter not covered by your AHD, then the Guardian has the responsibility of that decision.
If you do not have an EPG and a decision needs to be made regarding medical treatments for you, there is a ‘decision-maker’s hierarchy’ which the medical professional follow. The medical professional will seek authorisation for treatments from the persons in the below list, starting at the top of the list and working down until the professional find someone readily available to make a decision for you:
Advanced Health Directive
Enduring Guardian (ordered by the State Administrative Tribunal or an EPG)
Guardian with authority
Spouse or de facto partner who is 18 years old and living with you
Your nearest relative aged 18 or older and who is in a close personal relationship with the patient – this would be your adult children, parents, siblings
Your unpaid carer; or
Any other person who is in a close personal relationship with you
If there is more than one person who could be consulted in the above categories (for example you have more than 1 adult child or multiple adult siblings), then the first person the treating professional can locate to make a decision is the person who is given priority. This may not be what you want – particularly if you follow a different religion or have different life views to your family members. If that is a concern for you, then it is important to have an EPG signed to make it clear whom you would like to make decisions for you.
You can use kits to draw up your own EPG. If you decide to do this, you are at risk that if the EPG isn’t properly prepared, the document may be invalid and not work when you actually need it. An improperly prepared EPG may even result in circumstances which are not what you had envisaged when you signed the document. It is recommended that you have an EPG prepared by an experienced lawyer to give you peace of mind that your Guardians won’t have experience unnecessary problems if they care called up on to make decision for you.
Just like the EPA, it is important to remember that it is when you lose capacity that you need an EPG and it is at that time, that you will no longer have the ability to make one. However you decide to have your EPG prepared, if you decide that it’s a document you should have, then it’s important that you actually get onto it and get one EPG prepared and signed.
Advance Health Directive (AHD) - your medical and lifestyle choices
Every day, you’re making decisions about your health and how you live your life. What are you going to eat today? Going for a run? Going to get that funny mole looked at? It’s all part of daily life.
Have you thought what happens if suddenly you can’t make decisions for yourself due to illness or an accident?
It is easy to decide to leave preparing legal documents like the:
Advance Health Directive (AHD) – which is discussed below;
Enduring Power of Attorney (EPA) – (see above); or
Enduring Power of Guardianship (EPG) – (see above);
until you’re sick – but what about if the change to your health is sudden and you don’t have time to prepare?
By taking the time to think about these things now, you can make decisions on matters you care about whilst you have the ability to enter into documents to set out your wishes.
Advance Health Directive (AHD) in Western Australia
An AHD is a legal document which enables you to make decisions about the future medical treatments you do or don’t want to receive.
Your AHD will only operate whilst you are alive, but you can’t make reasonable decisions for yourself or if you can’t communicate your wishes.
In those circumstances, the AHD speaks for you and is effectively your voice to the medical decision-makers treating you. Once you pass away, your AHD comes to an end.
You must be aged 18 years or older and have full legal capacity to make an AHD. If you have a valid AHD it sits at the top of the “next-of-kin” hierarchy. This means that except in very limited circumstances, your AHD wishes will take priority over the instructions of your Guardian (if you have an EPG) and your next-of-kin.
It enables you to control what happens to you medically at a time you can’t speak for yourself.
Make your medical, surgical and palliative care wishes clear
An AHD can be used in relation to things such as such as medical, surgical and dental treatments, palliative care decisions and medical treatments intended to sustain your life. For example, you can state whether you want to receive life‑sustaining measures to prolong your life, such as tube feeding or resuscitation. You can also outline the quality of life that is acceptable to you – for example, you may wish to specify that life-sustaining measures are to be withheld or withdrawn in the event that you suffer severe and irreversible brain damage.
An AHD can be a particularly useful document if you have been diagnosed with a chronic illness and it is likely that you will suffer certain medical events in the future. With an AHD, you can say in advance which treatments you do or don’t want to receive.
An AHD can also give you peace of mind, knowing that you have made it easy for others to know what your treatment wishes are. An AHD can also take hard decisions away from your loved ones, as you can specify what sort of life-sustaining measures or treatments you wish to receive and take the burden away from your loved ones.
You can also include information in your AHD that health professionals should know about you, such as religious, spiritual or cultural beliefs which impact on the health care you wish to receive.
How do my treating doctors know I have an AHD?
Once you have a valid AHD, it is important that your treating professionals are aware it exists:
If you have not opted out of the MyGov My Health Record, you can upload a copy of your AHD to that website.
You should also provide your doctor and any medical specialists treating you with a copy of your AHD.
You can keep a card in your wallet or purse which states that you have an AHD, with contact details as to where it can be located.
This information should also be added to the emergency contact information on your mobile phone’s lock screen – there are a number of free apps you can download to put your medical emergency information on your phone.
Does it matter which State or Territory I live in?
Generally, a valid AHD will apply in other places in Australia, although there may be some limitations and additional requirements as the applicable laws are not consistent Australia-wide.
If this is your situation, you should obtain advice regarding your specific situation and needs.
If you are permanently moving State or Territory, we recommend that you update your documentation using the form of document which is appropriate for the State or Territory where you will be living.
Get it done!
You can’t make an AHD if you lose capacity – and that could happen at any time due to accident or illness.
If you decide that an AHD would be beneficial to you, you should make your AHD as soon as possible and preferably before an urgent health condition arises. That way, you get to have control over your body at a time you can’t speak for yourself.
This is general information and does not constitute specific legal advice.
If you would like further information in relation to your AHD, EPA, EPG or any other legal matter, please contact us on 9745 9455 or via our contact page.