Estate Planning: Enduring Powers of Guardianship
Estate planning today not only includes a discussion about Wills, trusts and powers of attorney. An increasingly useful part in the estate planning toolkit is a document known as an enduring power of guardianship (EPG).
Under the Guardianship and Administration Act 1990 (WA) (the Act), a person can execute an EPG to nominate a person to be their guardian. A guardian is someone who can make decisions for you in respect of your healthcare, treatment and lifestyle, should you be unable to do so. The Act allows for the appointment of the guardian to be enduring, that is to survive any incapacity of the grantor.
If you are unable to make decisions regarding your own welfare, treatment and healthcare, the Act sets out a priority list of ‘decision-makers’ who are authorised to make these decisions for you. Broadly, this list determines decisions are to be made in the following order:
- by the incapable person via an Advance Heath Directive;
- a guardian appointed by an EPG;
- a State Administrative Tribunal (SAT) appointed guardian;
- spouse or de facto (if living together) and over 18;
- child (if over 18);
- parent; or
- sibling (if over 18).
Many people simply assume that their ‘family’ or ‘next of kin’ will be able to make decisions for them if they are unable to do so. However in practice this can present problems. Take the situation of an older married couple with adult children (with no health directive or EPG in place). If one spouse is also incapable (eg if they were both in an accident) then the children would very likely need to give joint instructions to any medical practitioner or care facility. Complications can arise if the children do not all ‘get along’, there is a blended family, if a child is estranged or if the family members are simply overseas or interstate.
We advise all of our estate planning clients to consider making an EPG to nominate a guardian who can make decisions for their care, should they become incapable. This is important for the growing proportion of older Australians but is still relevant for all people, whatever the age or the family tree.
The other benefit of making an EPG is that you can insert conditions or restrictions on what types of decisions can be made, how the guardian is to take care of you and what criteria they are to follow when making these decisions. Alternatively a broad power can be given.
The WA Office of the Public Advocate publishes an info-kit and template EPG forms on its website. However, we do not recommend that people prepare these documents without proper advice. We have unfortunately seen cases of complications due to unworkable conditions being written into the EPG and incorrect execution of the documents. There is no substitute for legal advice and experience.
There are several important points to consider when making a valid EPG:
- An EPG must be made in the form or substantially in the form prescribed by the regulations to the Act and be properly executed. That is properly completed and signed and witnessed by 2 persons over 18, one of which who qualifies as a statutory declaration witness.
- Both the person and the guardian nominated must be over 18.
- A person can nominate 1, 2 or more guardians and can have substitute guardians (to take over if necessary), however if there is more than a single guardian then they must be appointed jointly (and they must make decisions together).
- The guardian(s) have to formally accept the appointment by signing the EPG and having their signature witnessed as above.
- Incorrectly signed or completed documents can lead to confusion and delay and ultimately may require an application to the SAT to remedy.
Consider the EPG like an insurance policy against an accident, developing an illness or old age. We all insure our cars, homes and often even our lives. We recommend that everyone considers an EPG as part of an effective and modern estate plan.
About the authors:
After completing a double degree Bachelor of Arts (Politics and International Relations) and a Bachelor of Law, Matthew was admitted into the Supreme Court of Western Australia in 2016. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.