The law states you can make your own decisions, unless proven otherwise. This is called having ‘capacity’. Some people slow down mentally, or suffer from memory loss as they age, but this does not mean they have lost capacity.
Capacity is linked to how well you understand information and how you apply that information. The law also recognises that you may have lost capacity to make some more complex decisions, but not others. For instance, you may still have capacity to make decisions about medical treatment or where you want to live but no longer understand your banking or property arrangements. It’s worth noting your capacity can also be temporarily affected by:
- Stress
- Anxiety
- Medication
- Illness
- Injury
Capacity can be regained when things improve.
Even if friends or family believe you are losing capacity, you should not be pressured to believe this. Capacity can only be determined by specific assessments. If you are worried you may be losing capacity, speak to your doctor (GP), case manager, or health professional to arrange an assessment.
Before thinking about appointing people to make decisions for you, consider your own decision-making ability.
Formal agreement tools
You can appoint people to make decisions for you about your property, finances, and health. How you do this depends on what you want to authorise the person or persons to do.
The Guardianship and Administration Act 1990 provides the legal framework to help you exercise an element of control over how decisions are made on your behalf, if you ever lose the capacity to make decisions for yourself.
It is important to be aware of three vital legal agreements to support you in formalising decisions about your care, medical decisions and lifestyle choices.
Legal agreement tools
Enduring Power of Attorney (EPA) – Enables you to appoint a trusted person or people to make financial decisions and/or property decisions on your behalf. You can choose when this starts, either immediately or only after loss of capacity is determined. You can limit what they are financially able to do for you, for example, they can pay your accounts but not sell your home.
Enduring Power of Guardianship (EPG) – Authorises a person or people of your choice to make important personal, lifestyle, or treatment decisions on your behalf. It only comes into effect after you are no longer able to make reasonable judgements about these matters yourself.
Advance Health Directive (AHD) – Enables you to make decisions now about treatment you would want, or not want, to receive if you ever became sick, injured or incapable of communicating your wishes. Treatments can include medical, surgical and dental procedures, palliative care or other life sustaining measures. Your doctor or other health professional can provide you with advice about treatment or decisions. You must have capacity to make an Advance Health Directive.
Making a will
Making a will is a sensible thing for anyone to do. You don’t need to have a lot of money or property. A will is a legal document describing how you wish your assets to be distributed upon your death. If you don’t have a will, your possessions and money may not be distributed the way you want.
A will can be prepared by the Public Trustee or by a solicitor. The Public Trustee also runs the WA Will Bank, a community service offering safe storage to keep your will safe from loss, theft or damage. Don’t forget to tell someone if you lodge your will in the WA Will Bank or in your solicitor’s will bank.
To make changes to your will, you must have capacity and not feel forced by family or friends into making changes. If you feel you are being coerced to make changes to your will, contact Advocare on 1800 700 600.
Appointing people to make decisions for you
When thinking of who to choose for your Enduring Power of Attorney or Enduring Power of Guardianship ask yourself:
- Do you trust them?
- Are you confident this person will always act in your best interests and take your wishes into account?
- Are they free of any problems or issues with alcohol, drugs or gambling?
It is recommended you speak to a lawyer and have them draw up your agreement, if possible. They will make sure you are making it of your own free will, are appointing a person or people of your choosing, and that it will be of benefit to you.
If you believe you are being pressured into appointing someone to make decisions for you, or if you have an agreement that you think is being abused, please seek help.
- Advocare’s Aged Care Advocacy Line 1800 700 600
- Office of the Public Advocate 1300 858 455 or 08 9278 7300
- Older People’s Rights Service 08 9440 1663
If you’d like to learn more about how to advocate for yourself, visit the national Older Person’s Advocacy Network (OPAN) for further information.
Older Person’s Advocacy Network (OPAN)
OPAN covers the different types of advocacy and details of different types of decision-making in different situations. Topics included explanations about:
– Supported decision-making
– Guardians and other substitute decision-makers
– Supporting your wishes and preferences
– Living with dementia/cognitive conditions
– Advance care planning
– Palliative care
Follow this link to OPAN’s website:
Need more information?
Take a look at our helpful information, tools and resources.
Helpful information
Locate guides, fact sheets, and brochures to share with family and supporters. See our helpful information
Useful Organisations
Discover the organisations Advocare works with who provide support to older people.? See our useful organisations directory
Glossary
Get help understanding aged care jargon. See our glossary of terms
Frequently Asked Questions
Why make an Enduring Power of Attorney (EPA)?
Many decision-making disabilities are caused by illness, accident or trauma. There is no way of knowing if or when any of us will lose the capacity to make decisions for ourselves or be physically unable to attend to property and financial matters.
By making an EPA you can authorise a person/s (or organisation), who you know and trust, to make property and financial decisions for you in your best interests, in case you lose capacity or are physically unable to manage your finances.
Are there any risks involved with making an Enduring Power of Attorney (EPA)?
You must have complete trust in the person or persons you appoint and ensure they are capable of looking after your finances in your best interests. If you lose capacity in the future, your attorney will need to make decisions about your finances, when you are unable to understand the decisions or have any oversight of what is being decided.
Making an EPA is a private decision and there is generally no requirement for your attorney to have your accounts audited or to prepare annual reports on how your money is being managed.
Even with the best planning, there are situations where attorneys act inappropriately. This could be. for example, because they do not fully understand their responsibility and give money to your family members or themselves when there are limited funds that need to be saved for your care. Or this could be, for example, because they intentionally abuse their power and use your money for themselves or to pay their own expenses or they sell your property and keep the proceeds.
If you have capacity and believe the person you appointed as your attorney is managing your finances inappropriately, you should take steps to secure your finances and cancel (revoke) your EPA.
If you have lost capacity and someone is concerned that your attorney is acting inappropriately with your finances, they should make an application to the Tribunal, who has the power to intervene to stop any abuse of an EPA.
If it is discovered that an attorney is abusing their authority, the Tribunal may appoint the Public Trustee to try to recover the money that’s been lost.
You can contact our advocates for further information on 1800 700 600.
How do I make an Enduring Power of Attorney (EPA) agreement?
You can make an EPA yourself, without any legal advice, or you may choose to get legal advice.
If you are worried about managing your financial affairs due to age or ill health, the Public Trustee can help. You can contact the Public Trustee’s office on 1300 746 116 or email public.trustee@justice.wa.gov.au for more information. Advocare can also support you on the Aged Care Advocacy Line 1800 700 600.
