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 think carefully about who you ask to do this and get legal advice before doing this as there is potential for the power to be abused.
This webpage has information on what an enduring power of attorney is, the difference between a power of attorney and an enduring power of attorney, the risks with making an enduring power attorney and what you should do with the document if you make one.
It also has information on what you can do if you think an 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 you to choose a trusted person (or two trusted persons) called an 'attorney' or 'donee', to make financial or property decisions for you.
You can choose whether your enduring power of attorney starts immediately, or only after you are unable to make decisions.
You can choose to allow your attorney to make any decision about your finances or property or limit the decisions they may make for you. For example, you might only give your attorney(s) the power to:
- operate your bank account(s)
- pay your bills and debts, and
- buy and sell real estate for you.
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 are the risks with making an enduring power of attorney?
It is important that you carefully consider who you wish to be your attorney as they will have broad powers, and sometimes those powers are abused.
It is important that the person you choose is trustworthy and reliable as they will be able to make decisions for you, at times when you are not capable of making those decisions yourself. You should choose someone who understands your values and preferences, and who will make decisions in your best interests.
What should I do with my enduring power of attorney?
If you decide to make an enduring power of attorney, it is important to keep the original in a safe place and to give a copy to relevant people and organisations. For example, you should give a copy of it to your nominated attorney(s), your bank, your accountant, and Landgate if you own property.
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 of the Public Advocate decides follow up is needed, the Public Advocate will investigate 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: 2 May 2024
