An Enduring Power of Attorney is similar to a General Power of Attorney except that the powers continue, or endure, in the event the donor loses mental capacity.
In Western Australia, a document appointing an Enduring Powers of Guardianship and Advance Health Directives can be used alongside an Enduring Power of Attorney to authorise medical and health decisions.
It is important to be aware that an Enduring Power of Attorney becomes void when you die.
The probability that someone can lose capacity is often not properly considered by people. However, if you do not have an Enduring Power of Attorney and develop a mental incapacity you are therefore unable to manage your financial affairs. It is too late then to have a lawyer prepare such a document as you do not have capacity to sign it.
The difficulty is that no person automatically has the right to manage your assets. Not even if they are your husband or wife.
This therefore has a colossal effect on all the financial decision making thereafter with your bank accounts, your jointly owned home, shares or other jointly owned assets or liabilities.
To have decisions made in these circumstances would then involve an application to the State Administrative Tribunal for an administration order. The person appointed under an administration order will have the same responsibilities as an attorney however the decision about who will be appointed will be made by the State
The administrator will be required to submit annual accounts to the Public Trustee for auditing.
Today professional groups such as accountants and financial planners, along with lawyers all strongly recommend that their clients of all ages and walks of life, make an Enduring Power of Attorney so their assets are not locked up if a person loses legal capacity to sign documents and their loved ones are put through avoidable stress.
Tim Hayter, Principal, Mid West Lawyers
This information is general in nature and should not be relied upon as legal advice. Formal legal advice should be sought for your particular circumstances.