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Estimated Time to Build: 11 - 14 Minutes
Jurisdiction: Western Australia
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Download the Enduring Power of Attorney - WA Sample
This is an enduring Power of Attorney.
This means that if you become of unsound mind (that is, if you have a stroke or have an accident, and as a result, you cannot make reasoned decisions for yourself), your Power of Attorney is not revoked and remains in operation.
Your Attorney will still be able to use the Power of Attorney to look after you and your financial and legal affairs after you lose the capability to do this for yourself.
This hint is provided by Law Central Legal.
You can give a Power of Attorney if you are:
- at least 18 years old; and
- of sound mind.
To be a valid grant you must have the requisite mental capacity. If you want to give a Power of Attorney to someone, and you or your proposed attorney have any concerns that your mental capacity might be challenged by anyone, you should consider getting a written medical opinion to confirm your capacity to grant the power of attorney.
This hint is provided by Law Central Legal.
A company cannot give an Enduring Power of Attorney to anyone.
However, there are other types of common law Power of Attorney to achieve this.
This hint is provided by Law Central Legal.
This is an important question because you can give a Power of Attorney to someone only if you are of sound mind. If you have suffered a stroke, suffer a medical condition or are just getting old, then someone may claim that you weren't of sound mind when you signed your Power of Attorney.
You don't want that.
To be a valid grant you must have the requisite mental capacity. If you want to give a Power of Attorney to someone, and you or your proposed attorney have any concerns that your mental capacity might be challenged by anyone, you should consider getting a written medical opinion to confirm your capacity to grant the power of attorney.
Keep that medical opinion in a safe place. Also let the people that you made attorneys know of the medical opinion. That protects them as well.
This hint is provided by Law Central Legal.
Please give your full name, for example Mary Jane Smith.
Some people have assets in other names. For example, you may have assets in both your maiden name (before you were married) and your married name.
Therefore, you would write "Mary Jane Smith (also known as Mary Jane Terriaca)".
This hint is provided by Law Central Legal.
Where do you live? - You must state your current residential address, for example 42 Narrow Lane, Perth 6000.
This hint is provided by Law Central Legal.
After you've prepared your document, you must sign the Power of Attorney in the presence of two (2) attesting witnesses, both of whom are 18 years of age or older, and at least one of whom is authorised by law to take declarations.
Neither of the two witnesses should be a person who is being appointed as an attorney or substitute attorney, and they must state their full name, address and occupation.
This hint is provided by Law Central Legal.
The Power of Attorney needs to be signed before two (2) attesting witnesses, both of whom are 18 years of age or older, and at least one of whom is authorised by law to take declarations.
Neither of the two witnesses should be a person who is being appointed as an attorney or substitute attorney, and they must state their full name, address and occupation.
Go to http://www.lawcentral.com.au/documents/DocumentLinks/Authorised_Witnesses_For_Statutory_Declarations.pdf for a list of Authorised Witnesses.
No person under the age of eighteen may be a witness.
This hint is provided by Law Central Legal.
If you are of sound mind, then you can revoke the Power of Attorney at any time.
If you do not want your Power of Attorney to operate anymore, you should inform your Attorney and other relevant people and agencies in writing.
Keep a copy of your written revocation together with a list of all people and agencies to whom you have sent it.
If you have lodged your Power of Attorney with Landgate, you will need to lodge a formal revocation with Landgate.
This hint is provided by Law Central Legal.
If you need to use the Power of Attorney for land transactions, then you need to lodge two copies of the Power of Attorney with original signatures at Landgate.
Landgate's address is:
Mt Newman House
200 St George's Terrace
Perth WA 6000
Ph: (08) 92737044
or at Midland Square, Midland.
Landgate charges a fee for lodging and revoking a Power of Attorney.
If you lodge the Power of Attorney with Landgate then your Attorney can deal with land on your behalf.
If you lodge the Power of Attorney more than 3 months after it's been signed, then you need to also lodge a Statutory Declaration confirming that the Power of Attorney is still in operation.
This hint is provided by Law Central Legal.
QUESTION: Do enduring Power of Attorneys work after you are dead?
ANSWER: Who is "you"? There are 4 situations:
1. If ‘you’ give someone a POA and you die the POA is null and void. It is of no effect. You the donor are dead.
2. If ‘you’ receive a POA and you are the single attorney and you die then the POA is null and void.
3. If ‘you’ receive a POA and you are a joint attorney and you die then the POA is null and void.
4. If ‘you’ receive a POA and you are a joint and several attorney and you die then yes the POA continues on, with the last remaining attorney doing the work by himself.
This hint is provided by Law Central Legal.
This document does not create a medical Power of Attorney. It is only a commercial Power of Attorney.
If you want a Medical Power of Attorney then you should do a specific one for your state (if your state allows it).
Have a look at www.lawcentral.com.au for a Medical Power of Attorney.
This hint is provided by Law Central Legal.
The choice of Attorney is up to you. You can choose:
* a spouse
* a partner
* a family member
* a friend
Your Attorney of choice must be willing to take on responsibility on your behalf.
Ask yourself:
Do you trust the person to manage your property and financial affairs?
Will they act in your best interests at all times?
Are they competent to deal with management decisions?
Are they capable of keeping accurate records of dealings and transactions?
This hint is provided by Law Central Legal.
You can appoint 1 Attorney.
Or you can appoint 2 Attorneys.
You can't have a 3rd Attorney. If you have 3 children, unfortunately you can only appoint 2 of them at most.
You may want to appoint 2 Attorneys if:
This hint is provided by Law Central Legal.
If you decide to appoint 2 people as your Attorneys, you have 2 options.
1. Your Attorneys acting jointly: Such "joint" Attorneys must act together on your behalf at all times. They must agree on what they are doing and sign off together.
If they fight and can't agree then nothing happens. Something happens only when both of them agree. If they disagree then they can always go and seek direction from the Public Advocate. No lawyer is required.
It is safer to make your Attorneys act jointly, especially if you do not trust the judgement of one of them.
2. Your Attorneys acting jointly and severally: If you appoint your 2 Attorneys to act jointly and severally, then they can do things on your behalf independently OR together.
You may want to consider this less safe option if:
* the Attorneys live overseas;
* one of the Attorneys lives overseas;
* the Attorneys will always agree with each other;
* you completely trust the judgement of both Attorneys; or
* you don't expect the Attorneys to ever disagree.
If you are unsure about any of the issues above, then appoint the Attorneys to act "jointly".
This hint is provided by Law Central Legal.
The choice of Attorney is up to you. Your Attorney must be over 18 years of age. It should be someone you trust.
You can choose:
* a spouse
* a partner
* a family member
* a friend
Your Attorney of choice must be willing to accept responsibility on your behalf.
Ask yourself:
Do you trust the person to manage your property and financial affairs?
Will they act in your best interests at all times?
Are they competent in dealing with management decisions?
Are they capable of keeping accurate records of dealings and transactions?
This hint is provided by Law Central Legal.
State the full name of the person you want to appoint as your Attorney, for example Michael John Smith.
This hint is provided by Law Central Legal.
State your Attorney's current residential address, for example:
Unit 5, 31 Green Street, Claremont WA Australia.
You may appoint someone who lives in Western Australia, in another Australian state or even in another country as your Attorney.
This hint is provided by Law Central Legal.
Your Attorney is legally obliged to act in your best interests. Your Attorney is accountable for his/her actions.
Your Attorney must:
* exercise their powers with reasonable diligence to protect your interests;
* keep accurate records and accounts of all dealing and transactions they make on your behalf;
* not renounce the power while you are of unsound mind, except with the permission of the State Administrative Tribunal.
If your Attorney no longer wants or is able to act on your behalf, they must let you know in writing.
This hint is provided by Law Central Legal.
Your Attorney has power to make decisions regarding your property and financial matters.
When your Attorney exercises authority on your behalf, your Attorney should sign as follows:
(Attorney's name) as Attorney for (your name).
For example Helen Smith as Attorney for James Bond.
Your Attorney cannot:
- make lifestyle and medical decisions for you;
- do anything that requires your personal skill or discretion;
- deal with property that you hold on trust;
- act as a director or secretary of a company on your behalf (unless authorised by constitution of the company); or
- appoint a substitute Attorney.
This hint is provided by Law Central Legal.
Your Attorney must indicate their willingness to accept the power under the Power of Attorney and the obligations that go with it.
To do so, your Attorney must sign in the space provided on the Acceptance page after you signed the Power of Attorney.
Your Attorney's signature must be dated, but not witnessed.
This hint is provided by Law Central Legal.
If you are of sound mind, and your Attorney no longer is able or willing to act as your Attorney, they need to let you know in writing.
If you are of unsound mind, then your Attorney must apply to the State Adminitrative Tribunal for permission to renounce your Power of Attorney.
This hint is provided by Law Central Legal.
The choice of Attorney is up to you. You can choose:
* a spouse
* a partner
* a family member
* a friend
Your Attorney of choice must be willing to accept responsibility on your behalf.
Ask yourself:
Do you trust the person to manage your property and financial affairs?
Will they act in your best interests at all times?
Are they competent in dealing with management decisions?
Are they capable of keeping accurate records of dealings and transactions?
This hint is provided by Law Central Legal.
State the full name of the person you want to appoint as your Attorney, for example Michael John Smith.
This hint is provided by Law Central Legal.
State your Attorney's current residential address, for example:
Unit 5, 31 Green Street, Claremont WA Australia.
You may appoint someone who lives in Western Australia, in another Australian state or even in another country as your Attorney.
This hint is provided by Law Central Legal.
You can appoint 1 Attorney.
Or you can appoint 2 Attorneys.
You can't have a 3rd Attorney. If you have 3 children, unfortunately you can only appoint 2 of them at most.
You may want to appoint 2 Attorneys if:
• you have 2 children and you want to appoint both of them;
• you know and trust 2 people and they are both happy to act as Attorneys;
• you don't trust one person to do the job on their own;
• the job would be too hard for one person to handle;
• one of your Attorneys is not very business-minded (but compassionate) and needs help of a second more business-minded person; or
• one of the Attorneys lives overseas or travels a lot
This hint is provided by Law Central Legal.
Your Attorney is legally obliged to act in your best interests at all times. Your Attorney is accountable for their actions.
Your Attorney must:
- exercise their powers with reasonable diligence to protect your interests;
- keep accurate records and accounts of all dealing and transactions they make on your behalf; and
- not renounce the power while you are of unsound mind.
If your Attorney no longer wants or is able to act on your behalf, they must let you know in writing. If you are still of sound mind they can renounce. If you aren’t of sound mind then they must make an application to the State Administrative Tribunal.
This hint is provided by Law Central Legal.
Your Attorney has power to make decisions regarding your property and financial matters.
When your Attorney exercises authority on your behalf, your Attorney should sign as follows:
(Attorney's name) as Attorney for (your name).
For example Helen Smith as Attorney for James Bond.
Your Attorney cannot:
- make lifestyle and medical decisions for you;
- do anything that requires your personal skill or discretion;
- deal with property that you hold on trust;
- act as a director or secretary of a company on your behalf (unless authorised by constitution of the company);
- make a Will;
- vote in any government elections; or
- appoint a substitute or additional Attorney.
This hint is provided by Law Central Legal.
Your Attorney must indicate their willingness to accept the power under the Power of Attorney and the obligations that go with it.
To do so, your Attorney must sign in the space provided on the Acceptance page after you signed the Power of Attorney.
Your Attorney's signature must be dated, but not witnessed.
This hint is provided by Law Central Legal.
If you are of sound mind, and your Attorney no longer is able or willing to act as your Attorney, they need to let you know in writing.
If you are of unsound mind, then your Attorney must apply to the State Administrative Tribunal for permission to renounce your Power of Attorney.
This hint is provided by Law Central Legal.
If you decide to appoint 2 people as your Attorneys, you have 2 options:
1. Your Attorneys acting jointly: Such "joint" Attorneys must act together on your behalf at all times. They must agree on what they are doing and sign off together.
If they fight and can't agree then nothing happens. Something happens only when both of them agree. If they disagree then they can always go and seek direction from the Public Advocate. No lawyer is required.
It is safer to make your Attorneys act jointly, especially if you do not trust the judgement of one of them.
2. Your Attorneys acting jointly and severally: If you appoint your 2 Attorneys to act jointly and severally, then they can do things on your behalf independently OR together.
You may want to consider this less safe option if:
* the Attorneys live overseas;
* one of the Attorneys lives overseas;
* the Attorneys will always agree with each other;
* you completely trust the judgement of both Attorneys; or
* you don't expect the Attorneys to ever disagree.
If you are unsure about any of the issues above, then appoint the Attorneys to act "jointly".
This hint is provided by Law Central Legal.
In Western Australia, you can have your Enduring Power of Attorney operate immediately after you sign it. This is called an "immediate" Enduring Power of Attorney.
Alternatively, you can opt for an Enduring Power of Attorney to come into effect only when you no longer have the mental capacity.
People often do 2 separate Powers of Attorney. One to their spouse - this usually comes into effect immediately. They then do a second Power of Attorney to up to 2 of their children - but this only comes into effect if they are of unsound mind.
It is a personal choice. There is no right or wrong answer. If in doubt, talk to your loved ones.
This hint is provided by Law Central Legal.
If you choose the option "Immediately", then your Attorney assumes the power immediately once your Attorney signs to accept it.
The Power of Attorney continues in operation in the event that you lose your decision-making capacity. While you retain your decision-making capacity, your Attorney must act in accordance with your directions.
This hint is provided by Law Central Legal.
If you choose the option "Only When I am of Unsound Mind", your Attorney assumes the power only if and when you lose capacity to make reasoned decisions for yourself.
This requires a formal declaration from the State Administrative Tribunal (it use to be the Guardianship and Administration Board) for the power to come into effect.
This hint is provided by Law Central Legal.
This document has been prepared by the law practice Law Central Legal
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