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CHECKLIST FOR PREPARING AN

ENDURING POWER OF ATTORNEY IN

WESTERN AUSTRALIA

Disclaimer

The author of this checklist has assumed that lawyers will exercise their

professional judgement with respect to the correctness and applicability of

the material.

This checklist should be used only as an initial reference point. Reliance on

this checklist to the exclusion of other resources is irresponsible, as conduct

of each file depends on its own particular circumstances and instructions of

the client.

This checklist should be used only as a secondary reference. For definitive

answers, lawyers should refer to applicable statutes, regulations, practice

directions and case law.

The author of this checklist accepts no responsibility for any errors or

omissions, and expressly disclaims any such responsibility.

Checklists are generally used for the purposes of protecting your client’s

interests and managing professional liability risks.

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Actions

Tick

or

N/A

1 I identified the donor of the enduring power of attorney (EPA).

2 I took a copy of the identification document.

3 I kept the copy of the identification document on file.

4 I checked that the donor is 18 years or older.

5 I documented the scope and limits of my retainer.

6 I obtained a signed copy of the retained by the donor of the EPA.

7 I provided the client with a short presentation on the giving of

EPA in Western Australia.

8 I took instructions from the donor in person and recorded

them.

9 DOUBTS ABOUT CAPACITY

After questioning the donor for the purpose of establishing

capacity I formed the view that the donor may have impaired

capacity. I considered the involvement of medical staff for an

opinion as to capacity and referred the donor to a medical

practitioner for assessment.

I informed the medical practitioner in my referral letter about

the standard that the law requires in relation to capacity for

EPA.

10 A current medical certificate was produced to me which stated

that the donor has capacity.

I have attached a copy of the medical certificate to these notes.

11 I asked the donor if they understood the nature and extent of

their estate and recorded their answer.

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12 I explained to the donor the type of financial and property

decisions that their attorney is authorised to make.

13 I explained to the donor the effect of the transactions that an

EPA will enable.

14 I asked the donor if they were signing the EPA freely and

voluntarily and recorded their answer.

15 I explained to the donor that the attorney’s stewardship will not

be monitored.

16 I explained to the donor that it is for them to consider the

proposed attorney’s integrity, financial acumen, and availability

and what the risk associated with making the wrong choice are.

17 I explained to the donor that the powers that they were giving

could be abused by their attorney.

I asked the donor to state in their own words what they

understood the risks of giving an EPA to be and recorded their

answer.

18 I explained to the donor that once the EPA comes into force the

attorney will be able to assume complete authority over the

donor’s financial affairs and be able to do anything with the

donor’s property that the donor could have done, subject to any

limitations and conditions in the EPA.

I asked the donor to explain what they understood about the

attorney’s powers after the EPA comes into effect and recorded

their answer.

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19 I explained to the donor that they can specify when the EPA

comes into force and the effect of their choice on the attorney’s

authority.

I asked the donor to explain what they understood their options

to be in choosing a start date for the EPA and recorded their

answer.

20 I discussed with the donor the limitations and conditions that

the donor instructed me to include in the subject EPA.

I asked the donor to explain to me what they understood the

limitations or conditions on the powers of the attorney to be and

recorded their answer.

21 I explained to the donor how they can cancel the EPA as long as

they had the legal capacity to do so.

I explained to the donor that if the donor lost legal capacity they

could not cancel the EPA or appoint a new attorney.

I asked the donor to explain what they understood about

cancelling an EPA before and after loss of capacity and recorded

their answer.

22 I explained to the donor that if they should lose capacity their

attorney’s powers will be irrevocable unless the State

Administrative Tribunal (SAT) orders otherwise.

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23 I explained to the donor that their attorney can continue to

deal with their financial affairs after the donor becomes

mentally incapable.

I asked the donor to explain what they understood the attorney

could do in case the donor lost legal capacity and recorded their

answer.

24 The donor changed radically their instructions. I questioned the

donor about the reasons and recorded their answer.

25 I checked that the witnessing was completed correctly.

26 I obtained a certificate signed by the interpreter.

I attached the interpreter’s certificate to these notes.

27 I placed this checklist on the client’s file.

28 The law firm has safeguards in place ensuring that this checklist

will never be destroyed.