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The Importance of Enduring Powers

August 2012

While we may wish otherwise, you may not always be able to make decisions about your property, finance, lifestyle, and health during your lifetime. For example, what would happen if you suddenly become too ill to make choices about your medical treatment? Or what would happen if you suffered from a disability such as a stroke and cannot communicate your wishes or needs to others? What if you need to transfer property while you are overseas?

Enduring powers of attorney (EPA), enduring powers of guardianship (EPG), and advance health directives (AHD) are very important documents which could be used to assist in those situations.

Homemade or pro forma Enduring Powers should be avoided as lawyers spend a great deal of time seeking rectification of or defending Enduring Powers which are frequently challenged on a number of grounds.

The best time for thinking about professionally drafted Enduring Powers is when you are well and healthy because the law invalidates enduring powers which are made after you have lost capacity due to disability or illness.

If you lose capacity… then…
WITHOUT AN EPA those people you trust have no power to handle your property, financial or business affairs
WITHOUT AN EPG your loved ones are not able to make lifestyle or personal decisions on your behalf
WITHOUT AN AHD you may be subjected to health and medical treatments which you expressly do not want during your lifetime or in certain circumstances

Losing capacity without having appointed Enduring Powers can be a particularly traumatic time for your family as they will need to make an application to the State Administrative Tribunal or to the Supreme Court of Western Australia so that decisions can be made in relation to your affairs. This can be an expensive and time-consuming process, and an unnecessary burden on your family.

Having a professionally drafted and executed Enduring Power of Attorney, Enduring Power of Guardianship, and Advance Health Directive in the first place is insurance for your future and will help avoid the unnecessary stress. Why let your family waste money and time that they would rather spend on taking care of you?

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances