Legal Information Sheet - Enduring Power of Attorney, Enduring Power of Guardianship and Advance Health Directives

These three documents take effect if you 'lose capacity' (in a legal sense), which may happen towards the end of your life, but can happen at any age. They provide certainty at an important time in your life, at a relatively low cost.

The role of each document is as follows:

Enduring Power of Attorney (EPA)

A document in which a person nominates someone (known as an attorney) to manage their financial affairs.

Note: An attorney cannot be authorised to make personal, lifestyle or medical treatment decisions.

You may wish to specify particular financial matters that your attorney where may or may not use their power.

Two copies of an Enduring Power of Attorney must be registered (stamped) by Landgate before they are used (before the person signing the authority loses legal capacity). It is best to provide them to Landgate for this purpose as soon as they are prepared. Landgate will return the copies after stamping.

The fee for stamping (at October 2016) is $165.80 per Power of Attorney. Address for Landgate is 'Landgate Document Management Section, PO Box 2222 Midland WA 6936'.

Enduring Power of Guardianship (EPG)

A document in which a person nominates someone (an enduring guardian) to make personal, lifestyle and treatment decisions on their behalf, at any time you are unable to make reasonable judgments in respect of matters relating to my person. An enduring guardian cannot be authorised to make decisions about financial or property matters.

As with an EPA, you can specify that your Guardian only act in certain circumstances and/or only in relation to certain issues, for example:

  • decide where I am to live, whether permanently or temporarily
  • decide with whom I am to live
  • decide whether I should work and, if so, any matters related to my working
  • consent, or refuse consent, on my behalf to any medical, surgical or dental treatment or other health care (including palliative care and life sustaining measures such as assisted ventilation and cardiopulmonary resuscitation)
  • decide what education and training I am to receive
  • decide with whom I am to associate
  • commence, defend, conduct or settle on my behalf any legal proceedings except proceedings relating to my property or estate
  • advocate for, and make decisions about, which support services I should have access to
  • seek and receive information on my behalf from any person, body or organisation

For Both EPA and EPG, you may wish to appoint a substitute guardian/attorney, if one is unable/unwilling to act, and/or joint guardians/attorneys, and specify if you wish the survivor/s to act if one passes or is unable/unwilling to act. In the case where one joint guardian/attorney passes, you must appoint a substitute guardian/attorney to act with the surviving guardian/attorney.

Advance Health Directive (AHD)

A document in which a person makes decisions about their future medical treatment.

There is a hierarchy between a EPG and an AHD, such that in relation to medical treatment decisions, an AHD takes precedence over an EPG.

Treatment decisions relate to any medical, surgical or dental treatment or other health care (including palliative care and life sustaining measures such as assisted ventilation and cardiopulmonary resuscitation). A treatment decision is defined as a decision to consent or refuse consent to the commencement or continuation of any treatment.

Like with EPAs and EPGs, a treatment decision operates only in the circumstances that you specify, and you can consent or non-consent to particular treatment/s. Your enduring guardian or another person cannot consent or refuse consent on your behalf to any treatment to which this advance health directive applies. In that way, it is akin to a directive to your medical professionals alone.

An example of a Directive in a AHD to consider may be: 'In the circumstance where there is no possibility of my recovery in a meaningful way, I refuse consent to the provision of life sustaining measures.'