In the old days it was possible to appoint another person to act on your behalf, either in your absence or upon your direction, in relation to commercial transactions.

The problem with the old law, which permitted a person to give a Power of Attorney to someone else, was that the authority of the Power of Attorney fell away once the mental capacity of the person giving the Power of Attorney (the Donor) lost his or her legal capacity (i.e., when the Donor lost his/her mental capacity or became physically unable to act).

Great inconvenience was occasioned to the public as a result of the application of this law and accordingly in about 1990 amendments were made to the Guardianship and Administration Act 1900 which permitted the granting of an upgraded power of attorney, thus permitting the making of an Enduring Power of Attorney.

The purpose of this new document was to authorise the power of attorney to continue in force despite the subsequent incapacity of the donor.  It was said that the government recognised the predicament that many elderly, mentally ill and intellectually disabled people are in and it thus provided for a mechanism for assisting them in a manner which would least restrict their civil liberties.

Thus the era of the Enduring Power of Attorney was born.  By this document, which must be prepared in a special form, and witnessed by at least one authorised witness, the person who wishes to appoint someone to act for him or her, grants to that person (the Donee) the power to act on the Donor ‘s behalf.

There are a couple of types of Enduring Power of Attorney.  One where the authority under the Enduring Power of Attorney is of immediate effect (once the document has been signed by all of the parties) and the other where the authority under the document is only applicable once a declaration is made by the Guardianship and Administration Board that the Donor does not have legal capacity.  (In my experience by far and away the most common is the former).

How many people can be appointed to represent the donor?  i.e., can more than 2 Donees be appointed in an Enduring Power of Attorney?

The question was decided in a case before the Supreme Court of Western Australia in April 2000.

In this case an elderly gentleman wished to appoint his wife and 2 sons as joint and several attorneys (meaning any one of them or all three of them could act on his behalf) to do anything that he could lawfully do by an attorney.

When the document was lodged at Landgate for registration under section 143 of the Transfer of Land Act it was rejected by the Registrar of Titles on the basis that it failed to comply with section 104 of the Guardianship and Administration Act, the provision which provides for the making of an Enduring Power of Attorney.

A hearing before the Supreme Court, in an endeavour to identify the correct interpretation of the section, resulted in a finding that the Act provides for a maximum of 2 people to be included in an Enduring Power of Attorney as Donee.  Once more than 2 people are appointed, the document does not comply with the enabling legislation and in this particular instance it simply failed.  The Registrar of Titles was found to be correct and his refusal to register the EPA was upheld – thus preventing the Donees from dealing with his land.

Although the EPA is on the face of it a relatively simple document, the failure to get it right may have significant undesirable consequences.  Seek legal advice where appropriate.

To arrange an enduring power of attorney in Perth, contact FLSD today.