Your Will sets out your wishes regarding your personal affairs  only after your death. However, what happens as you grow older  or become unable to care for yourself whether due to age, disease  or accident? 

In such situations, Enduring Powers of Attorney (“EPAs”) and  Enduring Powers of Guardianship (“EPGs”) can be indispensable.  EPAs and EPGs can assist in situations where a person is still  living but may not have the ability to make decisions regarding  their finances or health and treatment or may simply require some  assistance to make those decisions.  

Further, putting in place arrangements while you still can for  another person to manage your affairs and treatment, may relieve  some of the burden that your friends and family may otherwise  suffer in such difficult situations. 

What is an EPA? 

An EPA is a legal document that enables anyone who is over  the age of 18 years and has legal capacity (“the Donor”) to give  another person (“the Donee”) legal authority to make financial  and/or property decisions on behalf of that person while they are  living.

The Donee, once appointed, will have the power to make  decisions (in the best interests of the Donor) with respect to the  general expenditure of the Donor’s funds, payment of debts,  receipt of income, taxation, Centrelink entitlements and can deal  with any real property registered to the Donor (i.e. sell, lease and  generally deal with third parties). 

What is an EPG? 

An EPG enables a competent adult (“the Appointor”) to  appoint another person (“the Enduring Guardian” or “Appointee”)  to make personal, lifestyle and treatment decisions on their behalf.

Treatment in this context means any medical, surgical or dental  treatment, including life-sustaining measures and palliative care.  A treatment decision is one that enables the guardian to consent to  or refuse consent to provide any treatment. Personal and lifestyle  matters may include where a person lives and the type of support  services they receive.  

What happens if you do not have an EPA or EPG?

Where a person has not made an EPA and there is doubt  about their decision-making capability, any person may lodge  an application for an administration order with the State  Administrative Tribunal to act as that person’s attorney. Where a person has not made an EPG and becomes incapable  of making treatment and lifestyle decisions, the Guardianship  and Administration Act 1990 (WA) provides for a hierarchy of  persons who may be called on to make non-urgent treatment  decisions or who can apply for a guardianship order from the State  Administrative Tribunal. The first person in the hierarchy is an  enduring guardian appointed under a valid EPG.

We can assist if you require advice in respect of succession or  estate planning, estate litigation or any agribusiness matter.