Enduring powers of attorney in Western Australia 

This article states the law of Western Australia. The enduring power of attorney is not in a separate statute here: it sits in Part 9 of the Guardianship and Administration Act 1990 (WA), alongside guardianship, enduring guardianship and advance health directives¹. The prior question in a validity problem is whether the instrument met both limbs of s 104(2), because Western Australia imposes the strictest execution formality of the jurisdictions examined.

Who may create one, and in what form

Section 104(1a) requires a person to have reached 18 years of age and to have full legal capacity to create an enduring power of attorney.

Section 104(1) requires the instrument to be in, or substantially in, the form of Form 1 in Schedule 3, and to contain a declaration by the donor choosing between two very different operations.

Two kinds of declaration

Section 104(1)(b) offers the donor a choice that other jurisdictions largely do not.

The power may be declared to continue in force notwithstanding the donor's subsequent legal incapacity — the familiar enduring form, operating immediately and surviving incapacity.

Or it may be declared to be in force only during any period when a declaration by the State Administrative Tribunal under s 106 that the donor does not have legal capacity is in force. On this option the power does not operate at all until the Tribunal has declared incapacity, and it operates only while that declaration stands.

That second option is a genuine springing power with a judicial trigger. A donor who does not want an attorney acting while they remain capable can choose it, and a student must identify which declaration the instrument contains before saying what the attorney could do and when.

Section 105 confirms that an enduring power of attorney survives incapacity, and s 106 allows the donee to apply for a declaration of legal incapacity.

Two witnesses, and an acceptance

Section 104(2) makes an instrument not effective to create an enduring power unless two things are satisfied.

First, there must be two attesting witnesses: either both authorised by law to take declarations, or one so authorised and the other holding the qualifications specified in s 104(3).

Second, the instrument must have endorsed on it, or annexed to it, a statement of acceptance in or substantially in the form of Form 2 in Schedule 3, executed by the person or persons appointed as donee and, where applicable, by any substitute donee.

The comparison across jurisdictions is instructive. South Australia requires one attesting witness authorised to take affidavits plus a statement of acceptance. New South Wales requires one prescribed witness who must explain the instrument and certify apparent understanding. Western Australia requires two witnesses, and extends the acceptance requirement expressly to substitute donees — so an instrument in which a named substitute never signed the acceptance is not effective to create an enduring power at all, even if the primary donee accepted (s 104(2)(b)).

The donee's obligations

Section 107(1) imposes four obligations, and they repay separate treatment.

The donee must exercise the powers "with reasonable diligence to protect the interests of the donor" and, failing that, is liable to the donor for any loss occasioned by the failure. The donee must keep and preserve accurate records and accounts of all dealings and transactions under the power — and this is the paragraph carrying a penalty of $2,000. Subject to s 109(2), the donee may not renounce the power during any period of the donor's legal incapacity. And a donee who becomes bankrupt must report the bankruptcy to the State Administrative Tribunal.

The bankruptcy-reporting duty has no counterpart in the South Australian or New South Wales provisions examined, and it is a sensible safeguard where the attorney controls the donor's money.

Interstate instruments are recognised, but with modified duties

Section 104A provides for recognition of powers of attorney created in other jurisdictions. Section 107(2) then modifies the obligations for a power recognised by the Tribunal under s 104A(2): the diligence and record-keeping obligations apply only to the donor's estate within Western Australia, and the non-renunciation obligation is likewise adjusted.

An answer about a recognised interstate power must therefore limit the duties territorially rather than applying s 107(1) at large.

Applying this in a problem question

1. Confirm the donor was 18 or over with full legal capacity when the instrument was made.
2. Identify which s 104(1)(b) declaration the instrument contains; a springing power does nothing until a s 106 declaration is in force.
3. Test both limbs of s 104(2) — two witnesses of the right kind, and an executed statement of acceptance.
4. Check that any substitute donee also executed the acceptance.
5. For misuse, plead s 107(1)(a) for loss and treat the record-keeping breach under s 107(1)(b) as separately penalised.
6. Where the instrument was made interstate, apply s 104A and confine the duties under s 107(2).

Self-check

• Have I identified which kind of declaration the instrument contains?
• Have I required two attesting witnesses, not one?
• Have I checked the acceptance was executed by any substitute donee?
• Have I limited the duties territorially for a recognised interstate power?