Enduring Power of Guardianship

You have control over how your Enduring Power of Guardianship will work.  The scope of decision-making authority given to your enduring guardian is determined by you.  You may authorise your enduring guardian to make the same range of decisions as a plenary guardian.  This would enable your enduring guardian to:

• decide where you live, whether permanently or temporarily
• decide who you live with
• decide whether or not you work and, if so, any matters related to that work
• make treatment decisions on your behalf to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardio-pulmonary resuscitation)
• decide what education and training you receive
• determine who you 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 access
• seek and receive information on your behalf.

Alternatively, you may limit the decision-making authority of your enduring guardian. For example, you may authorise your enduring guardian to make decisions about any treatment you receive, but not about where you live or who you associate with.

The level of decision-making authority is determined by your EPG.  You can maintain decision-making authority over some aspects of your life while passing on authority for more complex decisions, which can be beneficial if you have a condition that develops over an extended period of time.

Under Western Australian law, an Enduring Power of Guardianship is recognised as a private legal agreement, so it does not have to be registered. The EPG form is a straight-forward document that most people will be able to complete without legal or other assistance.

Full legal capacity

Both parties must have full legal capacity at the time of signing the EPG. If there is any doubt over the appointor’s capacity, an assessment of capacity should be sought from at least one doctor qualified to make such assessments. The doctor should be advised of the appointor’s intention to make an EPG and be requested to provide a written report of the assessment, stating clearly whether or not the appointor has capacity.

Being unable to read or write, sign your name or understand English.

These circumstances do not prevent you from making an Enduring Power of Guardianship.

If English is not the appointor’s first language the Public Advocate recommends that an accredited interpreter attend the assessment.

People who cannot read or write, sign their name or speak English will need to include a readover and/or marksman clause (Appendix C in the EPG kit).

The Public Advocate recommends that people in this position seek legal advice before making their EPG.

Storing your EPG

Both the appointor (the person making the Enduring Power of Guardianship) and the appointee (the person being appointed enduring guardian) should keep copies of the EPG in a safe place from which it can be accessed readily if required. 

Where appropriate, the appointor can also provide their GP and any relevant service providers with a copy.

The appointor can also store a copy of their EPG in My Health Record.  For step-by-step instructions visit the Advance care planning page on Australian Digital Health Agency website.

Note: An EPG does not need to be registered with the Office of the Public Advocate.

Making an Enduring Power of Guardianship involves completing an EPG form.

The EPG form is straightforward - most people should be able to complete it without legal or other assistance.

To be legally enforceable, the EPG form must be in the form, or substantially in the form, specified in Schedule 1 of the Guardianship and Administration Regulations 2005. The form contained in the Office of the Public Advocate's Enduring Power of Guardianship Guide and Information Kit meets these requirements.

Witnesses

The signatures of both the appointor (the person making the EPG) and the appointee (the person being appointed enduring guardian) must be witnessed by two persons who are not party to the agreement, are at least 18 years of age and have full legal capacity. At least one of these two witnesses must be a person authorised to witness legal documents under the Oaths, Affidavits and Statutory Declarations Act 2005.

Need help?

If you are unable to print the EPG form from our website, please contact the Office of the Public Advocate on opa@justice.wa.gov.au or 61 8 9278 7300 for alternative options.

Samples of Plenary (all functions) and Limited (only specified functions) EPG forms are available for reference, along with our EPG publications.

Please also review our Frequently Asked Questions for additional information.

If you require more information about completing your EPG, the Office of the Public Advocate has a telephone advisory service.  Please call 1300 858 455 between 9.00 am and 4.30 pm, Monday to Friday, and you can speak to a staff member about your specific enquiries.

If I make an Enduring Power of Attorney and an Enduring Power of Guardianship, can I appoint the same person to be both my attorney and enduring guardian?

Yes, it is possible to appoint the same person to be your attorney and your enduring guardian, however each appointment would need to be made separately, using the correct forms i.e. an Enduring Power of Attorney form must be completed to appoint your attorney and an Enduring Power of Guardianship form must be completed to appoint your enduring guardian.

Can a person with a decision-making disability make an enduring power of guardianship?

To be able to make an Enduring Power of Guardianship the adult must have ‘full legal capacity’. This means the person must know and understand:

• What an EPG is and what authority it will give to someone else
• that an EPG will give the enduring guardian authority to make decisions in relation to their medical treatment, and other personal and lifestyle decisions such as where they will live and what support services they will have.

Adults with impaired decision-making abilities, such as those with a psychiatric condition, dementia, an intellectual disability or an acquired brain injury may not be able to execute an EPG.

In the case of people with a mental illness, the issue of capacity can be complex, particularly if their ability to make reasoned decisions fluctuates with the severity of their illness. 

Any doubt about the person’s capacity to make the document could result in the State Administrative Tribunal finding the EPG invalid, and as a consequence it could be revoked.

What should I do if there is doubt about my capacity to make an Enduring Power of Guardianship?

If you are considering making an Enduring Power of Guardianship but your capacity to do so might be questioned, you are advised to seek the opinion of at least one doctor who is qualified to assess your capacity to determine if you have capacity to make the document.

There is no specific capacity assessment in relation to an EPG and it will be up to the health professional assessing your capacity to decide which test is suitable.

When seeking this opinion, you should advise the doctor of your intention to make an EPG and request a written report of the assessment which clearly states whether or not you have capacity. 

If you require an assessment of your capacity and English is not your first language, it is recommended you have an accredited interpreter attend the assessment with you.

If you are assessed as having full legal capacity, it is advisable:

• that the doctor, who made the assessment, be one of the two people who witnesses your enduring power of guardianship
• that you make the EPG as soon as possible after having the capacity assessment
• that you keep the copy of the doctor’s assessment of your capacity with the enduring power of guardianship, to ensure that everyone is aware that you had capacity to make it.

If you are assessed as not having capacity, you will be unable to make an EPG.

I know I have a condition which means I sometimes lose capacity and then regain it. What will happen if I make an Enduring Power of Guardianship?

Sometimes someone’s ability to make reasoned decisions may fluctuate depending on the severity of their condition, for example if the person has a mental illness.  In these circumstances, your enduring guardian is able to assume decision-making responsibility during times when you are unable to make decisions for yourself, and then when you recover, your enduring guardian will stop making decisions, because you can make them yourself.

You can clarify directions in your EPG to accommodate these fluctuations.  For example, you might include the direction: “I have been diagnosed with clinical depression and want my enduring guardian to act when my doctor states I lack capacity.”

What happens if there is doubt over my capacity to continue making decisions for myself?

If there is uncertainty over your capacity to make decisions for yourself, your general practitioner should:

• be asked to make an assessment of your capacity
• or provide a referral to an appropriate specialist for an assessment of your capacity. 

If the situation is still unclear, an application should be made to the State Administrative Tribunal for a decision about your capacity. 

In some cases, the State Administrative Tribunal may decide that while you are still capable of making certain types of decisions, you are no longer able to make reasoned judgements about other aspects of your life. For example, the State Administrative Tribunal may decide that you are capable of deciding where you should live but not about the medical treatment you should receive.

What are the witnessing requirements when making an Enduring Power of Guardianship?

When making an Enduring Power of Guardianship your signature and the signature of any person you are appointing as your enduring or substitute enduring guardian must be witnessed by two people.

Both witnesses must be at least 18 years of age and have full legal capacity. One of the witnesses must also be a person authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005.

A person previously employed under one of the listed professions, who has since retired, cannot be an authorised witness as they are no longer employed in that role.

Any person named as an enduring guardian or substitute enduring guardian cannot be a witness.

When witnesses are giving address details, a street address is preferable to a post office box. This address can be the place of business or employment.

What role does a witness play?  

The role of the witness is to verify the identity of the person signing the document.

The witness is not responsible for assessing the capacity of the person making the Enduring Power of Guardianship.  However, should the witness have concerns this, they may wish to consider whether they will witness the document.

My son/daughter has an intellectual disability/acquired brain injury and lacks capacity. Can I appoint myself or someone else as their enduring guardian?

Many people wish to put safeguards in place for adult children with a decision-making disability to ensure they are protected against abuse or neglect. However, it is not possible to make an Enduring Power of Guardianship on behalf of another person, so this cannot be used as part of preparing for their future.

If a person with a decision-making disability does not have capacity to make an EPG then other processes will need to be followed if decisions need to be made about personal, lifestyle and treatment matters.

What if someone doesn’t have a guardian?

When someone no longer has capacity, but they don’t have anyone formally appointed as a guardian, the Guardianship and Administration Act 1990 provides a list of people who can make treatment decisions on that person’s behalf.

This list works as a hierarchy, and the treating health professional must get a decision from the first person in the hierarchy who:

• Is at least 18 years of age
• Has full capacity
• Has a close personal relationship with the person; and
• Is reasonably available and willing to make the decision.

View the Hierarchy of Treatment Decision-makers

For other types of personal and lifestyle decisions there is no list, but if informal processes are working well, everyone agrees about the decisions being made, there is no need for anyone to be formally appointed as guardian to make the decisions.

In the Guardianship and Administration Act 1990 this ‘informal process’ is called the ‘least restrictive alternative’ as it is allowing the right decisions to be made for the person without any guardianship order being made.

What happens if the informal processes break down?

Sometimes the informal processes break down because people do not agree about what needs to happen, people are not available to make decisions or a family member knows that if they make a particular decision on behalf of the person with a decision-making disability, it may cause distress in the family.

In these circumstances an application to the State Administrative Tribunal would need to be made for the appointment of a guardian.

I have already made an Enduring Power of Attorney. Can I change this so that my attorney can also make personal, lifestyle and treatment decisions?

No. By making an Enduring Power of Attorney you are appointing a person to make property and financial decisions on your behalf. The role of attorney is limited to this area, therefore it is not possible to change your EPA to enable the attorney to make lifestyle type decisions.

If you want your attorney to also be your enduring guardian you can make an EPG and appoint them to make personal, lifestyle and treatment decisions.

Do I have to pay for an Enduring Power of Attorney (EPA) kit or Enduring Power of Guardianship (EPG) kit?

No, you can download our EPA and EPG kits free of charge from the publications page.  These kits provide step-by-step instructions along with the relevant form.  If you have any issues downloading the documents, contact our office on opa@justice.wa.gov.au or 1300 858 455 for further assistance. 

Alternative websites offer ‘design-your-own’ Western Australian EPA and EPG forms.  It is important to note that while they may offer a legitimate service, they might not provide one-to-one advice and will usually charge a fee.  We recommend you understand exactly what service is being provided before making any payments.

The Office of the Public Advocate is a government agency, it does not charge for EPA and EPG kits and provides free advice on how to complete them. Email opa@justice.wa.gov.au or call  us on 1300 858 455.

I am having trouble printing the EPA and/or EPG form

Completing the forms incorrectly could make your EPA or EPG invalid, which is why we recommend printing the kits in full, so you have the corresponding step-by-step instructions to help you complete the paperwork. 

However, if you wish to print the form only, refer to the 'How to print the form only' for step-by-step instructions and page numbers.

If you still have problems printing you can request an EPA and/or EPG kit in hard copy format.  To do so, please contact our office on 1300 858 455 or email opa@justice.wa.gov.au and provide the full name and postal address of the person wishing to complete the document(s).

Can I complete an EPA or EPG form electronically?

No – the forms require wet/physical signatures and are not designed to be completed electronically

What if I don’t want to use the EPG kit provided?

If you would prefer to type in the information, the format for the Enduring Power of Guardianship form is contained within the Guardianship and Administration Regulations 2005. This can be found at http://www.legislation.wa.gov.au/ where the form can be downloaded as a word document for you to type into.

What happens if I divorce or separate from the person I appointed as my enduring guardian?

Separation or divorce will not affect the validity of an Enduring Power of Guardianship.

An appointor who wants their EPG 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 EPG.

If the parties have separated or divorced and the appointor does not have capacity, an interested party may apply to the Tribunal for a decision on whether the EPG should continue to operate.

If I get married or start a de facto relationship, does my existing enduring power of guardianship become invalid?

No. Marriage or a de facto relationship does not affect the validity of an Enduring Power of Guardianship.

An appointor who gets married or starts a de facto relationship, but wants their existing EPG to continue, does not need to take any action.

An appointor who wants their spouse or de facto partner to be their enduring guardian (rather than the person/s they previously appointed), they will need to revoke the EPG and make a new one appointing their spouse or de facto partner.

How do I revoke (cancel) my EPG?

A person wishing to revoke their EPG must have full legal capacity.

While written revocation of an EPG is not a legal requirement at this time, the Public Advocate recommends that a person revoking their EPG provides written notification to their enduring guardian(s) and substitute enduring guardian(s), advising that the EPG has been revoked. They may also wish to request that any copies of their revoked EPG are returned.

All relevant persons and organisations, including the appointor’s general practitioner, other health professionals and family members, should also be advised in writing of the revocation.

A person who has lost capacity cannot revoke their EPG. The Act provides this safeguard to ensure they are not persuaded by others to change their enduring guardian once they have lost capacity. As an alternative, they can apply to the Tribunal for an intervention order.

Can I change my EPG?

If a person wishes to change any aspect of their EPG (for example who they nominated to be their enduring guardian), the Public Advocate recommends making a new one, and revoking the old one in writing (see previous question). This will ensure the EPG best reflects that person’s wishes and that all parts of the form are completed correctly.

Free EPG kits can be downloaded from the publications page.

I have been asked to be an enduring guardian. Do I have to accept the role?

No, being an enduring guardian is a voluntary role which carries a range of responsibilities. It is entirely up to you whether you accept an appointment as a person’s enduring guardian.

Before accepting you should be familiar with the role and the types of decisions you will have to make to ensure that you feel confident in carrying out the required duties.

I am an enduring guardian with the authority to make treatment decisions.  I need to make a treatment decision but do not fully understand the information being given to me by the health professional. What should I do?

If you are having difficulty understanding a recommended treatment, you should ask the doctor or other health professional to explain it in more simple terms or provide some written information to assist in making the decision.

You should not feel pressured to make a decision until you have all the information you need to make an informed decision in the person's best interests.

Once a decision has been made, details of the decision should be recorded including how and when it was reached and the people consulted in the process. This leaves less room for disputation later down the track about how decisions were made.

I am a joint enduring guardian and there is conflict between myself and the other joint enduring guardian. What should we do to resolve the situation?

If the appointor has a social worker, you might wish to consider asking the social worker whether a meeting could be arranged between the enduring guardians, with a view to resolving the conflict.

If all efforts to resolve the conflict are unsuccessful, an application may be made to the State Administrative Tribunal to intervene in the operation of the Enduring Power of Guardianship (EPG).

 The Tribunal can then determine whether to:

• give directions about the operation of the EPG
• revoke the EPG
• or vary the terms of the EPG.

If you are unsure about whether an application should be made to the Tribunal, you can discuss your concerns with an advisory officer from the Office of the Public Advocate's Telephone Advisory Service on 1300 858 455. 

I am an enduring guardian. Can I make financial decisions on behalf of my appointor?

No, an enduring guardian cannot make financial decisions on behalf of an appointor.

An enduring guardian is appointed to make personal, lifestyle and treatment decisions (to the extent that authority is granted within the EPG form) for the appointor, in the event the appointor loses the capacity to make the decisions.

An Enduring Power of Attorney (EPA) is the tool which enables an adult with full legal capacity to appoint another person or agency (attorney) to make property and financial decisions on their behalf.

As enduring guardian can I delegate my authority to someone else?  For example, when I am on holiday, can I ask someone else to carry out my role?

No, an enduring guardian does not have the power to nominate someone else to carry out the role of enduring guardian on their behalf.

If an enduring guardian is unable to fulfil their responsibilities, they may resign from the position.

If the appointor has capacity - the enduring guardian should advise the appointor they are resigning and return any personal documents and copies of the EPG.  In this situation the appointor may choose to make a new EPG with a different enduring guardian.

If the appointor has lost capacity - the enduring guardian will need to apply to the State Administrative Tribunal to be removed from the role, and for an alternative decision-maker to be appointed if required.

Do I continue in my role as enduring guardian when the person who appointed me dies?

No, an enduring power of guardianship ends on the death of the appointor.

This means that your role as enduring guardian ends immediately on the death of the appointor. At this point the provisions of the person’s Will take over.

If you are the executor of the person’s Will, any actions you carry out will be in your role as executor of the Will and not as the enduring guardian.

I no longer want, or am no longer able, to continue in the role as enduring guardian. What do I need to do?

An enduring guardian can only renounce their role when the appointor has capacity.

If the appointor has lost capacity and decisions can't be made in an informal manner, an application will need to be made to the State Administrative Tribunal to ensure that there is an authorised decision-maker.

Is it reasonable for staff at hospitals and aged-care facilities to witness EPGs? 

Hospitals and aged-care facilities will need to develop their own policies and guidelines about whether staff can or should witness Enduring Power of Guardianship (EPG) documents. This guidance will be important to ensure duty of care requirements are met and that staff are not placed under duress to witness powers especially where there may be concerns about the capacity of the person making the EPG.

Can service providers request a copy of an EPG?

Yes, when seeking decisions on behalf of a person who has lost capacity, it is important for service providers to ensure they approach the correct person. Therefore, service providers should ensure that requesting a copy of any EPG is part of the process when a person becomes a client.

Service providers should also consider how to record information about the EPG, the authority of the enduring guardian and how to ensure all staff are aware of this.

If a client's enduring guardian appears to be struggling with the role, what support is available and how can I help them?

If you can see an enduring guardian is having difficulty in their role, perhaps because a decision is complex or they do not have time to see the person regularly, it would be helpful to discuss their concerns to see if they can be resolved.

The Office of the Public Advocate’s Guide to Enduring Power of Guardianship in Western Australia provides information to an enduring guardian about the decision making process. Reading this may be enough to assist them in their role. The enduring guardian can also contact the Office of the Public Advocate's Telephone Advisory Service on 1300 858 455. While the advisory office cannot make the decision for the enduring guardian, they may be able to offer advice which will assist them in their role.

If I suspect that an enduring guardian is acting inappropriately in the role, what should I do?

If you have reason to believe that an enduring guardian is in any way abusing or neglecting the appointor, or not making decisions which are in their best interests, and talking with the enduring guardian has not resolved your concerns, you may wish to consider making an application to the State Administrative Tribunal in relation to the operation of the EPG.

What role should I play if a client wishes to complete an EPG?

Service providers and health professionals play a key role in ensuring that consumers have easy access to information about enduring powers of guardianship and how to make them. While it is anticipated that people will complete the powers independently, as a service provider you may be able to assist in directing people where to get the appropriate information, such as the Office of the Public Advocate’s website, range of publications and Telephone Advisory Service.

Can a service provider complete a client’s EPA/EPG form on their behalf?

No.  While a service provider can assist preparing an EPA/EPG, the person making them must complete the form(s) themselves.

Can we place a bulk order of the EPG/EPA kits to distribute hard copies to our clients?

The Office of the Public Advocate does not supply bulk orders of EPG and/or EPA kits to service providers.  Instead, kits are sent directly to people who seek to make the powers.

Individuals wishing to make an EPG and/or EPA are invited to contact the office direct, so material can be sent direct to their home address.  This is to ensure the person requesting the material has capacity, understands the requirements/processes involved.  It also helps to mitigate coercive behaviour from third parties.

As an alternative, we supply bulk orders of the Plain English – Who will make decisions for you? brochure, which provides a comprehensive breakdown of how Enduring Powers of Attorney, Enduring Powers of Guardianship and Advance Health Directives work.  This document gives service providers an informative handout to disseminate to clients as required.

If a service provider has a person in their care who is unable to contact us direct, they can do so on their behalf, providing the person’s full name and home address.  A kit can then be sent direct to that person, remembering it is the person’s choice as to whether they wish to make the power, or not.

Individuals and service providers can contact the Advisory Service (1300 858 455 or opa@justice.wa.gov.au) if they have any EPG and/or EPA related enquiries.
 

A client who made an Enduring Power of Guardianship has since lost capacity. Who do I consult for decisions regarding personal, lifestyle and treatment matters?

If a person has made an EPG they will have decided who should make specific decisions on their behalf when they lose capacity. Service providers will need to see the EPG in order to know who has been appointed as enduring guardian(s) and what decision they have the authority to make.

Where the enduring guardian has the authority to make the required decision you must consult the enduring guardian.

If a decision is required for which the enduring guardian does not have the required authority, and a decision cannot be made informally, the enduring guardian may wish to make an application to the State Administrative Tribunal for a variation of the EPG.