Checklist for preparing an enduring power of attorney

1. 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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2. 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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3. 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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4. 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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5. 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.
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