"Who is who" in these FALQs
The person making the appointment under an Enduring Power of Guardianship document is referred to as the "appointor".
Similarly, the person being appointed is referred to as the "guardian".
For the purposes of these frequently asked legal questions, we use the word:
- "appointor" to refer to the person making the appointment; and
- "guardian" for the person being appointed.
What things are guardians not permitted to do during their appointment period?
There are a number of things that a guardian in Australia is not permitted to do during their appointment period - for example an enduring guardian cannot:
- make decisions about your finances, property or estate;
- vote for you in an election;
- consent to an adoption;
- consent to a marriage involving you or a person under 18 years of age;
- consent to you being sterilised without the approval of the Tribunal; or
- make or change your Will without an order from the Supreme Court.
Should I consult my health professional when making a medical Enduring Power of Guardianship?
It is a good idea to consult your health professional when making any Enduring Power of Guardianship about your future medical treatment. Your health professional can help by clarifying medical terms, and giving you information about various medical conditions and the advantages and disadvantages of various treatments.
What happens if a guardian dies or lacks decision making capacity during their period of appointment?
If a sole enduring guardian dies or loses capacity while an Enduring Power of Guardianship is in operation, a person with a proper interest in the matter may apply to the Western Australian State Administrative Tribunal (SAT) for the appointment of a guardian, if there is a need for decisions to be made.
If a joint enduring guardian dies or loses capacity while an Enduring Power of Guardianship is in operation, the remaining joint enduring guardian needs to check the Enduring Power of Guardianship document to see if they are authorised to continue in the role. Depending on what the Enduring Power of Guardianship document provides, they may need to apply to the SAT for a variation in the terms of the Enduring Power of Guardianship to ensure they can continue to act as the enduring guardian. Otherwise, the Enduring Power of Guardianship document may explicitly provide that they can continue.
What is the maximum number of guardians an appointor can appoint at one time using Cleardocs?
An appointor can appoint one or two guardians. If two guardians are appointed, then the appointor can only authorise their guardians to make decisions jointly (all guardians must agree on all decisions).
Does revoking one or more guardian's power also revoke the power of any remaining joint guardians?
We recommend that if an appointor intends to revoke one or more guardian's power but wishes to retain the remaining guardian's power, that a new Enduring Power of Guardianship document is signed to override the previous document.
If my spouse is my guardian and we get divorced, then does the Enduring Power of Guardianship arrangement automatically end?
Separation or divorce will not affect the validity of an Enduring Power of Guardianship where the appointor and enduring guardian have been married or in a de facto relationship.
An appointor who wants their Enduring Power of Guardianship to continue, does not need to take any action.
An appointor who no longer wants their former spouse or de facto partner to be their enduring guardian, will need to revoke the Enduring Power of Guardianship.
If the parties have separated or divorced and the appointor does not have capacity, an interested party may apply to the SAT for a decision on whether the Enduring Power of Guardianship should continue to operate.
When are guardian appointments automatically revoked?
A guardian's powers under an Enduring Power of Guardianship document in Western Australia will be revoked:
- if the guardian gives written notice of revocation to the guardian;
- if the SAT removes the guardian;
- if the appointor dies; or
- if the appointor executes a later Enduring Power of Guardianship document which revokes previous documents.
What happens if my family or decision-makers disagree with my wishes under my Enduring Power of Guardianship?
Generally, any specific wishes you have made in your Enduring Power of Guardianship 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 Enduring Power of Guardianship needs to be followed.
Can I ask someone to sign an Enduring Power of Guardianship for me?
The Cleardocs Enduring Power of Guardianship (Western Australia) product only permits the person making the enduring power of guardianship to sign the document as the appointor.
What are the requirements for witnessing the signing of an Enduring Power of Guardianship in Western Australia?
You need to arrange for the Enduring Power of Guardianship document to be signed by:
- the appointor, who will sign the Enduring Power of Guardianship document;
- an authorised witness, who will sign the Enduring Power of Guardianship document;
- another witness who does not need to be an authorised witness but who is at least 18 years old and who is not a guardian, who will sign the Enduring Power of Guardianship document; and
- the guardians(s), who will sign the Guardian'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:
- justices of the peace (JP);
- police officers;
- real estate agents;
- state and commonwealth public servants; and
The witnesses cannot be:
- the donor; or
- one of the guardians listed in the Enduring Power of Guardianship.
What type of decisions can be made under an Enduring Power of Guardianship?
An enduring guardian can make personal, lifestyle and health care decisions. An enduring guardian can be given the power to make all of these decisions or you can limit their decision-making authority.
If decision-making authority is not limited, enduring guardians will have the authority to:
- decide where you live, whether permanently or temporarily;
- decide who you will live with;
- decide whether you work and if so, any matters related to that work;
- provide or refuse consent, on your behalf, to any medical, surgical or dental treatment or other health care (including palliative care or life-sustaining measures such as assisted ventilation and cardiopulmonary resuscitation);
- provide or refuse consent, on your behalf, to any new or experimental treatments proposed for you as part of approved medical research relevant to your condition;
- decide what education and training you receive;
- determine who you will associate with;
- commence, defend, conduct or settle any legal proceedings on your behalf, except proceedings that relate to your property or estate;
- advocate for and make decisions about the support services you will have access to; or
- seek and receive information on your behalf.
What is 'decision making capacity' for the purposes of Enduring Power of Guardianship documents?
An appointor must have decision making capacity in order to create a legally effective Enduring Power of Guardianship document.
Similarly, a guardian must have decision making capacity when they accept their roles and throughout the period that they are acting as a guardian or alternative guardian.
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 appointor, or a guardian has decision making capacity, please seek advice from a medical practitioner.