In this article, Les Buchbinder from Bowen Buchbinder Vilensky outlines what you need to know about using an Enduring Power of Attorney.
What is an Enduring Power of Attorney (EPA)
An Enduring Power of Attorney is a legal document that allows you to appoint someone (known as an attorney) to manage your property and financial affairs in your best interests when you are unable to do so yourself. You can authorise your attorney to make property and financial decisions on your behalf either (a) at any time, or (b) only if you lose the mental capacity to make these decisions for yourself.
You may wonder why you would need an attorney – can’t you make all the important decisions yourself?
For the most part, yes. But there is always the risk you may suddenly become sick or injured, or need to travel at short notice. In these cases, it is useful to have someone that can legally act on your behalf, particularly in the case that a serious illness such as stroke leaves you unable to make important financial decisions for yourself.
Why use an Enduring Power of Attorney
Having an EPA is especially relevant for property transactions, because they tend to be very time sensitive – if you are unable to attend settlement or another meeting related to a property transaction, you won’t be able to simply reschedule. This is when you’ll be glad to know there is someone back home that understands your wishes and can carry them out for you.
Who can appoint an attorney?
Any adult (over the age of 18 years) can appoint an attorney using an EPA as long as they have full mental capacity – that is, they are capable of making their own personal and financial decisions at the time of appointment. Legally, this means you must understand the nature and effect of the decision to appoint an EPA; freely and voluntarily make that decision; and effectively communicate that decision.
Who can be an attorney?
You can appoint any adult (over the age of 18 years) as your attorney, or you may appoint two attorneys if you choose. In this case, you must nominate whether they are to act jointly, meaning both are required to make a decision or execute documents, or severally, meaning either may do so without the other having to be involved.
The most important factor in deciding whom to appoint is that they should be someone you trust completely – not just to be willing to act in your best interests, but also to understand your wishes and be able to competently execute them if the situation arises. The person must, of course, agree to act as your attorney. Most people choose a family member or a close friend.
Registering an Enduring Power of Attorney with Landgate
In general, once an EPA document is signed, it is legally binding: it does not need to be registered. However, when it comes to real estate transactions specifically, the Transfer of Land Act 1893 as amended requires that your POA documents be lodged with Landgate in order for your attorney to act on your behalf. If you have a settlement agent, it’s a good idea to leave a copy with them as well. They can help you ensure that the POA is binding and make sure everything goes smoothly at settlement.
Registration with Landgate currently costs $168.70. You must lodge your POA documents within three months of signing; otherwise you will also be required to either submit a Statutory Declaration signed by the authorised person to confirm that the POA has not been revoked, or seek an order from the State Administrative Tribunal stating that the EPA is in effect.
If the EPA hasn’t been lodged with Landgate come settlement, it is best for you to sign any documents yourself, just in case there is any issue with acceptance of the EPA later. However, if you are sure that your EPA is validly executed without restrictions and has not been revoked, then your attorney can still lawfully sign documents, including offer and acceptance, on your behalf. In this case, you must submit the EPA at the same time as the transfer of land documents (along with a Statutory Declaration, as explained above).
However, as stated above, your EPA is legally valid in respect of all other property and financial matters regardless of whether it is registered with Landgate. Click here to view Landgate’s Enduring Power of Attorney Information Kit. This includes the EPA documentation as well as detailed instructions on how to fill it out.
It is recommended that you consult with a solicitor to ensure that you fully understand the implications of appointing an attorney and that your documents are legally valid.
Les Buchbinder is a Director and Solicitor at Bowen Buchbinder Vilensky, a mid-sized law firm in Perth, Western Australia.