Knowledge Bank
What Is An Enduring Power Of Attorney?
Quick Answer
An Enduring Power of Attorney, commonly called an EPA, allows you to appoint one or two trusted people to make financial and property decisions for you during your lifetime.
You can choose for the authority to begin immediately or only after the State Administrative Tribunal declares that you have lost legal capacity.
An EPA continues to operate if you later lose capacity.
It ends when you pass, at which point the Executor’s authority under your Will begins.
The EPA must be made while you still have the legal capacity to understand the document and the authority you are giving.
Introduction
Estate planning is not only about deciding what happens after you pass.
It also involves deciding who may act if you are alive but temporarily or permanently unable to manage your financial affairs.
That situation may arise through illness, injury, declining capacity or physical inability.
Family members do not automatically receive legal authority merely because they are close to you.
An Enduring Power of Attorney allows you to choose the person or people who may act and decide when that authority can begin.
Where Does An EPA Fit In The Continuing Plan?
Different people may have authority at different stages.
While You Have Capacity
You continue making your own financial and property decisions.
If you have chosen an immediately operating EPA, your attorney may also assist or act under your direction.
You do not give up your own authority simply because the EPA exists.
If You Lose Capacity
An attorney appointed under an immediately operating EPA may continue acting.
If the EPA was prepared to begin only after loss of capacity, the State Administrative Tribunal must first declare that you have lost legal capacity and that the EPA is in force.
After You Pass
The EPA ends immediately.
Your attorney no longer has authority, and responsibility for your estate passes to the Executor appointed under your Will.
The person making decisions may change, but each stage should continue to support the same underlying intentions.
Practical Point
An EPA is a decision you make for yourself while you have legal capacity.
Your family cannot create one for you after you have lost the ability to understand the document and the authority being given.
Planning before the authority is needed allows you to choose who may act and how the arrangement should operate.
What Can An Attorney Do?
Depending on the terms of the EPA, an attorney may be able to:
- operate bank accounts and pay expenses;
- manage income and investments;
- deal with government agencies;
- buy, sell or manage personally owned property;
- sign financial and property documents; and
- deal with other financial matters on your behalf.
The attorney must act within the authority given by the EPA and in your best interests.
What Can’t An Attorney Do?
An attorney cannot use the EPA to:
- make or change your Will;
- make personal, lifestyle or treatment decisions;
- act outside the authority contained in the EPA;
- pass the attorney role to someone else;
- automatically perform your role as a company director or secretary; or
- automatically exercise powers you hold as a Trustee.
Personal, lifestyle and treatment decisions are addressed through an Enduring Power of Guardianship and, where appropriate, an Advance Health Directive.
Company, trust and business succession may also require separate arrangements.
When Does An EPA Begin?
An EPA may be prepared to operate in one of two ways.
Immediately
The attorney receives legal authority when the EPA has been properly completed and accepted.
You do not lose your own authority.
You may continue managing your finances and directing how assistance is provided.
This option may also be useful where you retain capacity but need practical help because of illness, physical limitations, travel or another circumstance.
Only After Loss Of Capacity
The attorney does not receive authority merely because someone believes you can no longer make decisions.
An application must be made to the State Administrative Tribunal.
The EPA begins only after the Tribunal declares that you have lost legal capacity and that the EPA is in force.
Neither choice is automatically better.
The decision involves balancing convenience, protection and confidence in the person appointed.
Choosing The Attorney
The attorney should be someone who is:
- trustworthy;
- willing to accept the responsibility;
- capable of managing financial matters;
- organised enough to keep proper records;
- available when decisions are needed; and
- able to work constructively with any co-attorney.
The most suitable person is not necessarily the closest relative.
The role requires judgement, reliability and a clear understanding that the attorney must act for your benefit rather than their own.
One Or Two Attorneys
You may appoint one or two primary attorneys and may also appoint substitute attorneys.
Where two attorneys are appointed, they may act in different ways.
Jointly
Both attorneys must agree and act together.
This may provide an additional check, but it can be less practical if both people are not readily available.
Jointly And Severally
Either attorney may act independently.
This provides greater flexibility, but each attorney has authority to act alone.
Substitute Attorneys
A substitute attorney may step in if a specified event prevents a primary attorney from continuing.
The arrangement should reflect the people involved, how they are likely to work together and the level of flexibility required.
What Responsibility Does The Attorney Have?
An attorney may receive substantial authority over another person’s finances.
They must act honestly, in the person’s best interests and within the terms of the EPA.
They should keep the person’s money and property separate from their own and maintain proper records of decisions and transactions.
An EPA is generally a private arrangement without automatic annual auditing.
If concerns arise, the State Administrative Tribunal can examine the attorney’s conduct and intervene where necessary.
What Happens Without An EPA?
If you lose capacity without a valid EPA, there may be no one with legal authority to manage your financial affairs.
A family member or another interested person may need to apply to the State Administrative Tribunal for an administrator to be appointed.
The Tribunal decides whether an administrator is required and who should act.
The person appointed may not be the person you would have selected yourself.
What About Companies, Trusts And Businesses?
An EPA deals with your personal financial and property affairs.
It may allow an attorney to deal with personally owned assets or shares, but it does not automatically allow them to act as a company director or secretary or to exercise a role you hold as Trustee.
Business, company and trust succession may therefore require additional arrangements.
Different Authority At Different Stages
Helen makes an immediately operating EPA appointing her daughter as attorney.
While Helen remains capable, she continues managing her own finances.
During a period of illness, her daughter uses the EPA to pay bills and deal with financial matters under Helen’s direction.
When Helen recovers, she resumes the day-to-day management of her affairs.
Years later, Helen passes.
Her daughter’s authority as attorney ends immediately.
The Executor appointed in Helen’s Will then becomes responsible for administering the estate.
The person acting changed as Helen’s circumstances changed, but the underlying plan continued without an avoidable gap in authority.
Common Mistake
“My closest relative must be the right attorney.”
Family relationships are important, but the role also requires trust, judgement, reliability and the ability to manage financial matters carefully.
The most suitable attorney is the person best able to carry out the responsibility—not automatically the closest relative.
Frequently Asked Questions
Can I Cancel My EPA?
Yes, while you retain legal capacity.
The revocation should be recorded in writing and communicated to the attorney and organisations holding copies.
If the EPA has been lodged with Landgate, those records should also be addressed.
Can My Attorney Change My Will?
No.
The authority under an EPA does not include making or changing your Will.
Does An EPA Continue After I Pass?
No.
It ends immediately when you pass.
The Executor’s authority under your Will then begins.
Does An EPA Need To Be Registered?
There is no general EPA register in Western Australia.
However, where an attorney may need to deal with land, the EPA will generally need to be lodged and noted with Landgate.
Banks and other organisations may also have their own processes for recognising the EPA.
Should I Also Consider An Enduring Power Of Guardianship?
An EPA covers financial and property matters.
An Enduring Power of Guardianship covers personal, lifestyle and treatment decisions.
The two documents perform different but connected roles.
Final Thoughts
An Enduring Power of Attorney allows you to choose who may manage your financial and property affairs during your lifetime.
It must be made while you have legal capacity, and the authority given should reflect both your circumstances and the trust you place in the person appointed.
While you are able to make decisions, you remain responsible for your affairs.
If assistance or substitute decision-making becomes necessary, the attorney may act under the EPA.
When you pass, that authority ends and the Executor’s role begins.
The documents and decision-makers change, but the purpose remains the same: carrying your considered intentions through each stage without an avoidable gap.