It is common for ageing individuals to lose their capacity to make sound decisions regarding finances or their health. In these cases, someone with an appointed Enduring Power of Attorney and Enduring Power of Guardianship can act on behalf of the individual’s best interests.
Establishing an Enduring Power of Attorney and Enduring Power of Guardianship are one of my biggest recommendations to families during aged care planning. All too often this is not done in time meaning families are required to go to the State Administration Tribunal to get the authorisation to act on a loved one’s behalf.
I know how difficult it can be to navigate, so this post will explain:
- What is Power of Attorney
- What is Enduring Power of Guardianship
- The role of Enduring Power of Attorney and Enduring Power of Guardianship
- Why setting up EPA & EPG Matters
- Steps to establish EPA and EPG
What Is a Power of Attorney?
A power of attorney is a legal document that appoints an individual to make financial and legal decisions on your behalf. The person granting the Power of Attorney is called the principal or donor. The individual who is appointed to act on their behalf is called the attorney, appointee, or donee. It is important to choose someone you trust and will have the capacity to act on your behalf, a power of attorney may be a family member or friend.
Two main types of Powers of Attorney in Australia include a General Power of Attorney and Enduring Power of Attorney.
- General Power of Attorney: When the Principal or Donor has the capacity to make decisions independently but nominates someone to act on their behalf. This only pertains to financial decisions and is often set for a certain period of time or specific purpose. It ends if the individual loses the capacity to make decisions.
- Enduring Power of Attorney: An enduring power of attorney (EPA) is a legal document that appoints someone to make financial or legal decisions on another person’s behalf. Unlike a general power of attorney, the “enduring” part means the authority continues even if the person loses mental capacity, which is especially relevant for people with dementia or cognitive decline. The legal document has no set end date but may specify a start date.
What Is an Enduring Power of Guardianship?
An Enduring Power of Guardianship (EPA) is a legal document that appoints a trusted person the authority to make personal, lifestyle and healthcare decisions on someone else’s behalf if they become unable to make those decisions themselves. The appointed guardian is responsible for decisions such as deciding where the person lives, consenting to medical treatment and making decisions about daily care and services.
I often recommend this excellent resource to families navigating aged care legal planning: Legal information | My Aged Care.
What Is the Role of an Enduring Power of Attorney and Enduring Power of Guardianship in Aged Care?
An Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG) play extremely important roles in aged care settings. If the person is unable to make decisions for themselves when a move to an aged care home the EPA and EPG are required for the move to take place.
The EPA will be responsible for:
- Accessing funds to pay for accommodation fees
- Selling or renting the family home
- Signing legal agreements on the person’s behalf
The EPG is responsible for:
- Choosing the Aged Care Home
- Consenting to medical treatment and care plans
- Making decisions about daily care
Why Setting Up a Power of Attorney and Enduring Power of Guardianship Matters
I always emphasise to my clients to be proactive in aged care legal planning. Setting up Enduring Power of Attorney and Enduring Power of Guardianship are one of the most crucial aged care decisions you and your loved one will make.
The goal is to have them set in place well before they are needed. Along with peace of mind, establishing a Power of Attorney and Power of Guardianship early helps ensure smooth decisions despite unexpected changes or challenges.
Here are some of the reasons to have an Enduring Power of Attorney and Enduring Power of Guardianship in place:
- Reduce family stress: Without an EPA and EPG in place, families may face unnecessary stress, uncertainty, disagreements, confusion, and frustration. A sudden decline in health or an unexpected event may make aged care admission urgent. With an EPA and EPG in place, families can progress with decision making immediately to ensure the best care.
- Avoid Lengthy Legal Proceedings: If an EPA and EPG are already in place, loved ones can make necessary decisions quickly and legally, without going through lengthy court applications for guardianship or administration.
- Ensuring the EPA and EPG are people you Know or Trust: These documents allow individuals to nominate people they trust to act in their best interest, ensuring their personal preferences, financial matters, and health care needs are respected even when they can’t voice them.
- Delays and Lack of Access to Aged Care: Another reason to be proactive in establishing EPA and EPG is avoiding potential delays in accessing Aged Care homes. A current copy of an EPA is compulsory in most Aged Care Facilities in Australia before gaining acceptance if the person is not capable of making decisions for themselves. .
Learn more here: Enduring Power of Attorney | Western Australian Government
Steps to Establish EPA and EPG
The process to appointing an Enduring Power of Attorney and Enduring Power of Guardianship are relatively straightforward. It is essential the person appointing must have full legal capacity at the time of making the application.
You can appoint more than one Enduring Power of Attorney or Enduring Power of Guardianship, but they must act jointly which means they must agree on any decisions made on your behalf.
There is also an option to appoint a Substitute EPA or EPG who would be responsible for making decisions should the primary person be unable to continue to role.
To appoint an enduring power of attorney, you will need to fill out and sign the appropriate forms. The individual/s you are appointing also needs to sign the forms.The signatures of the appointer and the appointee must be witnessed by 2 people who are not involved in the agreement, are at least 18 years old and have full legal capacity. At least one of the two witnesses must be a person authorised to witness legal documents under the Oaths, Affidavits and Statutory Declarations Act 2005.
Below are the links to the government information and forms required to appoint an Enduring Power of Attorney and Enduring Power of Guardianship in Western Australia.
Enduring Power of Attorney Information Kit
Enduring Power of Guardianship Information Kit
Empathetic Aged Care Support
Preparing for aged care involves more than just financial planning and choosing the right aged care home. Having an Enduring Power of Attorney and Enduring Power of Guardianship in place ensures the right people are empowered to act and make decisions, providing peace of mind and smoother transitions when care is needed most.
It may be appropriate to speak to a legal professional to help draft these documents in accordance with your state or territory laws. The right preparation today can make a world of difference tomorrow.
This process can be confusing to understand and stressful, but you don’t need to navigate this alone. Aged care decisions are difficult, overwhelming, and emotion-filled. Proactive planning ensures you have peace of mind and the knowledge needed to make informed aged care decisions.
If you’re exploring aged care options and unsure how or when to arrange an Enduring Power of Attorney and Enduring Power of Guardianship, let’s have a conversation. I can help you understand what’s involved and how to take the next step with confidence.
Learn more about my personalised, proactive approach here: Our Aged Care Services.
