Enduring Power of Attorney in Western Australia: Rules and Requirements

In Western Australia, an enduring power of attorney (EPA) covers financial matters only, is made under Part 9 of the Guardianship and Administration Act 1990, and needs two witnesses plus a signed statement of acceptance from the donee before it has any effect.

What Western Australia calls it and what it covers

Western Australia's Guardianship and Administration Act 1990 uses its own vocabulary: the person appointed is a donee, not an attorney, and the person granting the power is a donor, not a principal. An EPA made under Part 9 of the Act covers financial and property matters only. Personal and treatment decisions are handled by a separate instrument, an Enduring Power of Guardianship, created under Part 9A of the same Act. See the enduring guardianship and health decisions guide for how that companion instrument works, and the national enduring power of attorney guide for what an EPA is generally and how the states compare.

Making an EPA: form, execution and witnessing

A WA enduring power of attorney must be made using Form 1 in Schedule 3 of the Act. Under section 104(1a), the donor must be at least 18 years old and have full legal capacity. Section 104(2) sets two conditions before the instrument has any effect: it needs two attesting witnesses, and it needs an executed statement of acceptance from the donee.

The two witnesses cannot just be any adult. Either both must be people authorised by law to take declarations, a defined professional category that includes roles such as a Justice of the Peace or legal practitioner, or one witness must meet that test and the second must satisfy section 104(3), meaning at least 18 years old and not the donee or a substitute donee named in the instrument.

The donee, and any substitute donee, must sign a statement of acceptance on Form 2 of Schedule 3. Section 104C requires every donee and substitute donee to be at least 18 years old and to have full legal capacity in order to be eligible for appointment at all.

The donor must also make one of two declarations under section 104(1)(b): that the power continues despite the donor's later loss of capacity, or that the power only comes into force once the State Administrative Tribunal (SAT) has declared the donor lacks legal capacity. Which of the two the donor chooses changes when the EPA actually starts operating.

When the EPA starts operating

Section 105 provides that an EPA made on the first track, continuing despite incapacity, is not affected by the donor's subsequent legal incapacity. It operates from the moment it is validly made and keeps operating if the donor later loses capacity.

The second track works differently. Under section 106, the EPA only comes into force during a period when SAT has made a declaration that the donor lacks legal capacity. To trigger that, the donee applies to SAT under section 106(1), and SAT must be satisfied, under section 106(2), that the person is a donor under this section and that, because of a mental disability, they are unable to make reasonable judgments about their estate. Until SAT makes that declaration, an EPA made on this track has no operative effect.

Registration

Part 9 of the Act does not impose a general registration requirement for an EPA to be valid. Registration only becomes relevant when the donee wants to deal with land on the donor's behalf. Section 103(2) provides that, despite Part VI of the Transfer of Land Act 1893, an EPA in force is effective for that Act's purposes as if it had been made in the form required under section 143 of the Transfer of Land Act. In practice this folds an EPA land dealing into WA's ordinary Torrens lodgement process through Landgate, rather than creating a separate power of attorney register. Landgate's exact lodgement fee for this kind of dealing was not confirmed in the research behind this page; check Landgate's current fee schedule before lodging.

Attorney duties, conflicts and gifts

Section 107(1) sets out the donee's core duties: exercise the power with reasonable diligence to protect the donor's interests, and be liable to the donor for any loss caused by failing to do so. The donee must also keep and preserve accurate records and accounts, and breaching that duty carries a penalty of 2,000 dollars under section 107(1)(b). A donee cannot renounce the power while the donor is incapacitated without SAT's leave, subject to section 109(2), and must report their own bankruptcy to SAT under section 107(1)(d).

One gap is worth flagging plainly. Part 9 of the Act contains no provision authorising a donee to make gifts from the donor's assets at all. Most other Australian jurisdictions write specific rules around what gifts a donee may make and to whom. Western Australia's Act simply does not address gift giving in Part 9, so a WA donee has no express statutory authority there to fall back on.

Ending or changing an EPA

Part 9 does not contain a dedicated revocation section covering how a donor ends an EPA outright. What it does provide is SAT oversight: section 108 lets SAT revoke or vary an EPA when it makes an administration order over the donor's estate, and section 109 gives SAT broader powers, on application by an interested person, to revoke or vary an EPA, appoint a substitute donee, or confirm that a substitute has become the donee.

A second gap sits alongside the missing gift provision: no section in Part 9 automatically revokes or narrows an EPA when the donor marries or divorces. Some other states legislate that trigger directly; Western Australia's Act does not.

Instruments made in other states

An interstate or foreign EPA is not automatically recognised in Western Australia. Section 104A requires the donee to apply to SAT for an order recognising it as a WA enduring power of attorney. SAT must be satisfied that the interstate instrument corresponds sufficiently, in form and effect, to a section 104 EPA, and that recognising it is appropriate. Once SAT makes that order, the ordinary WA obligations and protections under sections 107(2), 108(3) and 109(5) apply, generally limited to the donor's estate in WA. SAT can later revoke the recognition order under section 104A(4). A donee moving to WA with an interstate EPA should not assume it works here without first applying to SAT.

Disputes, forms and related steps

The State Administrative Tribunal is the body that hears EPA related applications in Western Australia: declarations of incapacity under section 106, recognition of interstate instruments under section 104A, and revocation or variation applications under sections 108 and 109. Public Trustee WA and the Office of the Public Advocate also publish guidance for donors and donees, though disputes and formal orders go through SAT. If you are instead dealing with someone's estate after death rather than planning ahead, see the Western Australia probate guide. For other estate planning steps, see the making a will in Australia guide.