Enduring power of attorney
If you are going overseas or for some other reason need someone to make financial and property decisions, you could consider appointing a trusted person to have your enduring power of attorney or power of attorney. You should get legal advice before doing this as there is potential for the power to be abused.
Find out:
- what an enduring power of attorney is
- how an enduring power of attorney is different to a power of attorney
- what does legal capacity mean
- where to get help if you think someone given a power of attorney is not acting in the best interests of the person who gave them the power.
What is an enduring power of attorney?
An enduring power of attorney is a legal document that allows a person (the donor) to appoint a trusted person (the donee or attorney) to make financial and property decisions for them. More than one attorney can be appointed.
It can be made when the donor has capacity but might physically be unable to manage their affairs, for example, they are going overseas, or are incapacitated in hospital.
How is an enduring power of attorney different to a power of attorney?
Unlike a power of attorney, an enduring power of attorney remains valid after the donor loses legal capacity.
What does legal capacity mean in this context?
If you have full legal capacity you are able to understand the nature and effect of any legal documents you are completing or have completed and the nature and extent of your property.
Sometimes people lose capacity due to dementia, stroke, being in a coma, Alzheimer's, mental illness, accident, trauma, acquired brain injury, or for other reasons.
What if I think the attorney/donee is not acting in the best interests of the donor?
If you think an attorney or donee:
- is not acting in the best interests of a donor, or
- may be abusing the donor,
you can contact the Office of the Public Advocate's telephone advisory service on 1300 858 455 (freecall).
If the Office Public Advocate decides follow up is needed, the Public Advocate will conduct an investigation and/or refer the matter to the Western Australian police.
Get help
Our Civil Law Division may be able to give you general advice about an enduring power of attorney.
Legal Aid WA, through the Civil Law Division’s Elder Rights WA service can provide information and advice on enduring powers of attorney for clients over 65 and First Nations and CALD clients over 55, but does not draft enduring powers of attorney.
You can also telephone the Public Trustee on 1300 746 116 (new inquiries) for help with preparing enduring powers of attorney (fees are payable).
The Citizens Advice Bureau (08) 9221 5711 also helps with drafting enduring powers of attorney (a fee applies) and has information on Enduring Powers of Attorney on its website.
More information
The Public Trustee - Department of Justice has information on enduring powers of attorney.
The Office of the Public Advocate (1300 858 455 or (08) 9278 7300) has a telephone advisory service from 9.00am -5.00pm Monday to Friday (recorded information is available at other times) and a guide, information kit, information sheets and easy reads fact sheets.
You can contact the State Administrative Tribunal on (08) 9219 3111 or 1300 306 017 (cost of a local call) for information on applications for intervention into enduring powers of attorney.
Landgate also has information about enduring powers of attorney.
Reviewed: 11 October 2022
