Most people have heard of a Power of Attorney as a means to have someone act on your behalf. However, until a few years ago, these were largely limited to financial matters. Now, it is possible to appoint someone to look after you across a range of circumstances. This is through an Enduring Power of Attorney, Enduring Power of Guardianship and Advanced Health Directive.

What are they?

Whilst each state and territory has their own laws, in general, the concepts remain the same. Gold and Platinum members read on for the subtle differences between the States.

Enduring Power of Attorney (‘EPA’)

An EPA enables you to appoint a person to make financial and/or property decisions on your behalf. An EPA can work both whether you are unable to make these decisions yourself due to a loss of capacity, or are simply unavailable.

Enduring Power of Guardianship (‘EPG’)

An EPG enables you to appoint a person to make personal, lifestyle and treatment decisions on your behalf. An EPG comes into operation when you lose the ability to make these decisions yourself because of an illness of injury.

Advance Health Directives (‘AHD’)

An AHD enables you to set out in a document what medical, surgical or dental treatment and other health care you would, or would not want to receive if you are unable to make reasonable judgments about a treatment decision at the time the treatment is required.

Why are they “Enduring?”

An EPA is called “enduring” because the power continues beyond your loss of capacity to act on your own behalf. This is the most widely used form of Power of Attorney, as it remains effective when it is most needed. A Non-Enduring Power of Attorney (where the power ceases upon loss of capacity) is possible, but rarely used and is largely limited to a specific instruction (for example to finalise a property transaction while you are overseas).

An EPG is called “enduring” because you are appointed by the person to make the decision on their behalf in the event that they lose capacity. In WA, If you fail to appoint a guardian using an EPG, and you do lose capacity, then the State Administrative Tribunal (‘SAT’) can appoint a Guardian for you. However, this may not necessarily be the person you would have chosen yourself.

Who can be appointed and who should you appoint?

Anyone can be appointed as your enduring attorney or enduring guardian as long as they are 18 or older and have full legal capacity. You can appoint a sole enduring attorney or you can appoint two. They can be ‘joint attorneys’, where they must act together and agree on all decisions, or they can be ‘joint and several attorneys’, where they can make decisions independently or together. You can also appoint more than one enduring guardian, known as ‘joint enduring guardians’, who must act together and agree on all decisions.

It is important to remember that if you appoint someone other than your spouse or de facto partner, the authority of the appointed enduring guardian or enduring attorney will override the authority of your spouse or de facto partner. It is also important to consider whether the person you appoint is trustworthy and likely to act in your best interests. If you appoint more than one, are they likely to work well together?

You can appoint one or more substitute enduring guardians who would take over the role as your enduring guardian if one or all your enduring guardians were unable to continue in the role. If you do not have a substitute enduring guardian and your enduring guardian can no longer continue then a person with a proper interest in the matter may apply to the Tribunal for appointment of a guardian. You can also appoint a substitute power of attorney if the originally appointed enduring attorney is ever unavailable, unsuitable or unable to act as your attorney. You can appoint one or more and in the case of two substitute power of attorneys they can be joint or joint and several.

When do they take effect?

An EPA can start immediately (this can be while you still have legal capacity) or when you lose legal capacity. If it starts immediately, your Attorneys must act according to your instructions while you have capacity.

An EPG takes effect when you lose the capacity to make decisions for yourself.

An AHD only comes into effect when you are unable to make a treatment decision for yourself at the time the treatment is required.

What is loss of (legal) capacity and who makes the call on this?

For an EPG in WA, if there is uncertainty over your legal capacity it is possible to get a general practitioner to make an assessment or provide a referral for an assessment of your capacity. If it is still unclear then an application can be made to the SAT for a decision.

For an EPA in WA, an application needs to be made to the SAT to confirm loss of capacity. The SAT will then declare the EPA is in force.

Why are they Important?

EDA and EDG are important because they give you the opportunity to give authority to a person you know and trust to make decisions on your behalf when you are no longer able to. Financial, property, personal, lifestyle and treatment decisions are important decisions to be made and it is important to have someone you trust to make those decisions for you when you cannot. They give you an element of control over your future and they ensure your views and wishes are known and can be respected if you are unable to express them yourself.

An AHD is important because if you do not have a valid or applicable AHD, then medical, surgical or dental treatment decisions are made on your behalf. Who makes those decisions on your behalf is set out in the legislation, or if you chose, by your enduring guardian.

Things you can and can’t do?

An enduring attorney can make decisions on financial and/or property. They cannot make personal, lifestyle or treatment decisions. You can set conditions or restrictions for your attorney to act under.

An enduring guardian can make personal, lifestyle and health care decisions. In WA, the decisions an enduring guardian can make are found in clause 4A of an EPG form. You can give them the power to make all of these decisions or limit their decision making authority. An enduring guardian cannot make decisions for you on property or financial matters.

With an AHD you can give or withhold consent for specific medical, surgical or dental treatment or other health care. You cannot make an AHD unless you are 18 or older and you have legal capacity.

Who should consider preparing an EPA, EPG or AHD?

If you want to have a say in who cares for you and what happens to you if you lose the capacity to make decisions for yourself, then you should definitely consider putting these powers in place. It is somewhat ironic that many people who diligently prepare a Will to look after their family when they are gone, fail to protect themselves while they are still alive.

Build these documents now:

State	Suitable Documents
Australian Wide	Will - Married or Defacto No Children Will - Married or Defacto With Children Will - Single No Children Will - Single With Children
NSW	Enduring Power of Attorney - NSW Enduring Power of Guardianship - NSW
SA	Enduring Power of Attorney - SA
VIC	Enduring Power of Attorney - VIC Enduring Power of Attorney (Medical Treatment) - VIC Enduring Power of Guardianship - VIC
WA	Enduring Power of Attorney - WA Enduring Power of Guardianship - WA
QLD	Enduring Power of Attorney (Financial, Personal/Health)- QLD