Francis and Associates Lawyers - Local Pilbara Lawyers

Powers Of Attorney

In WA there are three document you can utilise whilst alive to protect yourself and your interests.  These are- 

  • Enduring power of attorney- for financial matters 
  • Enduring power of guardianship- for health and lifestyle matters 
  • Advanced health directive- for specific medical scenarios 

Like your Will, the above documents can only be made when you have capacity.   Unfortunately, it is typically when people have lost capacity that the need for one of these documents is realised and it is too late to make one.  In such scenarios, an application can be made to the State Administrative Tribunal.  This is a relatively simple and inexpensive task but it does take time and as such, can be a real issue when the authority provided in a power of attorney is required. It is also important to note that these documents are required in certain situations despite marriage or next of kin being available.  It is a common misconception that your spouse or child can automatically step in if you have lost capacity which is, in a lot of situations, not the case at all and they would not have the recognised authority banks and other agencies would require. I strongly encourage people to have the at least an enduring power of attorney and enduring power of guardianship for these reasons.  They can protect you and your assets by ensuring the right person has the authority to safeguard your interests.  Without this, an abusive child or step-child for example, could apply to be your financial administrator if you have lost capacity and misuse your funds. 

ENDURING POWER OF ATTORNEY 

An enduring power of attorney gives your attorney the power to make financial decisions on your behalf.  You can appoint one person with a backup person, multiple people jointly or jointly and severally.  Jointly and severally means one of the people can act independently. The document can come into effect in a variety of circumstances.  For example, you can have your attorney only come into effect if you have lost capacity or during a specific time frame or only for a specific asset.  You can also give your attorney authority to act even if you do have capacity in all of your financial matters.  This could be beneficial if, for example, you travel a lot and need people to attend the bank or to other financial matters on your behalf. If you wish to rely on an enduring power of attorney for land sales, it must be registered with Land Gate. 

To create the enduring power of attorney the person must have full legal capacity.  A person must also have full legal capacity to cancel an enduring power of attorney. It is recommended that the revocation is made in writing. If the donor has lost capacity, an application must be made to the State Administrative Tribunal to decide if the enduring power of attorney should be cancelled (revoked).  

ENDURING POWER OF GUARDIANSHIP 

An Enduring Power of Guardianship is a legal document that authorises a person of your choice, to make important personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making such decisions yourself. This person is known as an enduring guardian. An enduring guardian could be authorised to make decisions about things such as where you live, the support services you have access to and the treatment you receive. An enduring guardian can not be authorised to make property or financial decisions on your behalf. You can appoint more than one enduring guardian as joint enduring guardians, but they must act jointly which means they must reach agreement on any decisions they make on your behalf.  The scope of authority given to your enduring guardian is determined by you when you make your Enduring Power of Guardianship and can be limited to certain situations.  Unlike an Enduring power of attorney, the enduring guardian will only come into effect if you have lost capacity. 

ADVANCED HEALTH DIRECTIVE 

An Advance Health Directive (AHD) is a legal document that enables you to make decisions now about the treatment you would want – or not want – to receive if you ever became sick or injured and were incapable of communicating your wishes. In such circumstances, your AHD would effectively become your voice. The term ‘treatment’ includes medical, surgical and dental treatments, including palliative care and life-sustaining measures. An AHD would come into effect only if it applied to the treatment you required and only if you were unable to make reasoned judgements about a treatment decision at the time that the treatment was required.  That even if you had an enduring guardian, the health professional would be obliged to follow your wishes as outlined in your AHD. 

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