"Who is who" in these FALQs
The person making the appointment under a Power of Attorney document is referred to as the "donor".
Similarly, the person being appointed is referred to as the "attorney".
For the purposes of these frequently asked legal questions, we use the word:
- "donor" to refer to the person making the appointment; and
- "attorney" for the person being appointed.
What things are attorneys not permitted to do during their appointment period?
There are a number of things that an attorney in Australia is not permitted to do during their appointment period - for example, they:
Can a director of a company appoint an attorney under a Power of Attorney to act in that role on their behalf?
No, a director anywhere in Australia is not able to appoint an attorney to act on their behalf as a company director.
However, this question is often confused with a company's ability to appoint an attorney to act on behalf of a company, which is allowed and provided for under many company constitutions.
Can an attorney make or renew a binding death benefit nomination under an SMSF?
Possibly. The law around this issue is unclear throughout Australia.
The Superannuation Complaints Tribunal has held that it is possible for an attorney to make a binding death benefit nomination on behalf of a donor.
Although there are no laws expressly prohibiting the attorney from making such a nomination, many legal practitioners advise against doing so because of the associated risks. If an attorney makes a binding death benefit nomination in favour of a certain person or persons on behalf of the donor, then the attorney may find themselves subject to a claim by a family member or other person interested in the donor's affairs who may disagree with the nomination.
Because of these risks, many practitioners are of the view that it is a decision which - as with the execution of a Will and the role of a company director - is so personal in nature that it should only be executed by the donor themselves.
What happens if an attorney dies or lacks decision making capacity during their period of appointment?
In Western Australia, if an attorney is no longer willing or able to act in the role, and the donor still has capacity, we recommend the donor cancels the enduring power of attorney while they still have legal capacity. It is recommended they do so in writing. A letter explaining that they wish to cancel (revoke) their enduring power of attorney, should be given to any interested party to whom the donor had provided a copy of the enduring power of attorney. Where possible, the donor should collect the copies of their enduring power of attorney that they circulated and destroy them.
What is the maximum number of attorneys a donor can appoint at one time using Cleardocs?
A donor can appoint one or two attorneys. If more than one attorney is appointed, then the donor can authorise their attorneys to make decisions:
- jointly (all attorneys must agree on all decisions); or
- jointly and severally (any one of the attorneys may make decisions).
Does revoking one or more attorney's power also revoke the power of any remaining joint attorneys?
We recommend that if a donor intends to revoke one or more attorney's power but wishes to retain the remaining attorney's power, that a new Enduring Power of Attorney document is signed to override the previous document.
If my spouse is my attorney and we get divorced, then does the Power of Attorney arrangement automatically end?
Unlike some states (for example, Queensland) the Western Australian Guardianship and Administration Act 1990 does not provide that a power of attorney arrangement automatically ends if a donor and their attorney spouse get divorced. We accordingly recommend donors consider and creating a new Enduring Power of Attorney document to override the previous document should such a situation arise.
When are attorney appointments automatically revoked?
An attorney's powers under an Enduring Power of Attorney document in Western Australia will be revoked:
- if the attorney gives written notice of revocation to the attorney
- if the SAT removes the attorney
- if the donor executes a later Enduring Power of Attorney document
What happens if my family or decision-makers disagree with my wishes under my Power of Attorney?
Generally, any specific wishes you have made in your Enduring Power of Attorney document will take priority over the wishes of anyone else - including your family and your appointed decision-makers.
Maddocks recommends that you discuss your wishes with your family members and close friends as appropriate. By doing so, you will give them an understanding of your wishes and the reasoning behind them. Usually, this helps make it more likely that they will support your wishes if your Power of Attorney needs to be followed.
Can I ask someone to sign a Power of Attorney for me?
No. In Western Australia, the law does not allow for Enduring Power of Attorney documents to be signed by a person other than the donor.
What are the requirements for witnessing the signing of an Enduring Power of Attorney in Western Australia?
You need to arrange for the Enduring Power of Attorney document to be signed by:
- the donor, who will sign the Enduring Power of Attorney document;
- an authorised witness, who will sign the Enduring Power of Attorney document;
- another witness who does not need to be an authorised witness but who is at least 18 years old and who is not an attorney, who will sign the Enduring Power of Attorney document; and
- the attorney(s), who will sign the Attorney's Statement of Acceptance.
The authorised witness must be a person listed in Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA), which includes but is not limited to:
- justice of the peace (JP)
- police officers
- real estate agents
- state and commonwealth public servants
The witnesses cannot be:
- the donor; or
- one of the attorneys listed in the Enduring Power of Attorney.
What are 'financial matters' under an Enduring Power of Attorney?
An attorney under an Enduring Power of Attorney for financial matters, may act on behalf of the donor for any matters relating to the donor's financial or property affairs.
This includes any legal matters that relate to the donor's financial or property affairs but is subject to any limitations that may be set out within the Enduring Power of Attorney document.
Examples of financial matters include:
- paying rates, taxes or insurance premiums of the donor;
- making investments;
- carrying on any trade or business of the donor;
- dealing with land for the donor;
- making money available to the donor, such as withdrawing and depositing funds from a bank account; and
- paying any debts of the donor.
Can an attorney under an Enduring Power of Attorney give gifts or donations on the donor's behalf?
Attorneys can only use the donor's money or other property to give gifts and donations if it is of the nature of gift or donation the donor would have given when they had capacity and if it is the nature of gift or donation the donor might have been expected to have made.
Such gifts and donations must be of reasonable value, taking into consideration all of the circumstances, including the donor's financial position.
Your attorney must keep written records of any gift made and must specify the amount of the gift and to whom the gift has been made. If there is any uncertainty directions can be sought from the State Administrative Tribunal.
What is 'decision making capacity' for the purposes of Enduring Power of Attorney documents?
A donor must have decision making capacity in order to create a legally effective Enduring Power of Attorney document.
Similarly, an attorney must have decision making capacity when they accept their roles and throughout the period that they are acting as an attorney or alternative attorney.
Some of the factors to consider in determining whether a person has decision making capacity includes an ability to:
- understand the information relevant to making a decision;
- understand the effects of making such a decision;
- retain such information to the extent necessary to make a decision;
- use or weigh that information as part of the process of making the decision; and
- effectively communicate their decision.
It is assumed that a person has decision making capacity unless there is evidence to the contrary. If you are unsure whether the donor, or an attorney has decision making capacity, please seek advice from a medical practitioner.