Planning ahead for a time when you may no longer be able to make decisions for yourself is an important part of preparing for the future. While many people in Western Australia understand the need for a Will, fewer consider what might happen if they lose the ability to make choices about their personal care, living arrangements, or medical treatment. This is where an Enduring Power of Guardianship (EPG) becomes essential—but knowing exactly when it comes into effect can be confusing and has significant implications for you and your loved ones.
Understanding enduring power of guardianship
An EPG is a legal document that allows you to appoint someone you trust—referred to as an enduring guardian—to make personal and lifestyle decisions on your behalf if you lose the mental capacity to make those decisions yourself. This is different from an Enduring Power of Attorney, which deals with financial and legal matters.
Established under Western Australia’s Guardianship and Administration Act 1990, an EPG authorises the appointed guardian to make decisions regarding where you live, access to support services, who you have contact with, and importantly, medical treatment decisions. By executing an EPG, individuals can ensure that their personal values and preferences are respected and upheld by someone who understands their wishes, should they become unable to communicate or make decisions independently.
The critical question: when does it take effect?
The effectiveness of an EPG depends on one crucial factor: your mental capacity to make decisions. The EPG only comes into effect if you lose the mental capacity to make the specific personal or lifestyle decisions that your appointed enduring guardian is authorised to handle. Until that point, you remain in control of your own choices.
Losing mental capacity does not always happen all at once. A person may still be able to make some simple decisions like what to eat for breakfast—while struggling to understand more complex matters, such as medical treatment options. In these cases, the EPG applies only to the decisions the person is no longer able to make independently.
Understanding mental capacity in Western Australia
In Western Australia, the assessment of mental capacity follows specific legal criteria designed to protect individuals and ensure decisions are made appropriately.
A person is considered to lack mental capacity for a particular decision if they are unable to:
- Understand the decision and its consequences
- Retain the information long enough to make a choice
- Weigh up the options and think them through
- Communicate your decision—whether by speaking, writing, or other means
Importantly, the assessment is decision-specific and time-specific. A person may lack capacity for complex financial decisions but retain capacity for simple personal care choices. Capacity can also fluctuate – a person might have good days and bad days.
Who determines when the epg becomes effective?
This is where things can become complicated in practice. There is no formal trigger or procedural step that initiates its operation. Rather, it comes into effect specifically, when the individual is deemed to lack the mental capacity to make the relevant personal or lifestyle decisions.
- Medical professionals: Medical professionals, such as doctors or specialists, play a critical role in assessing whether the you lack the capacity to make decisions. Upon identifying such limitations, they may advise that the appointed enduring guardian assume responsibility for relevant decision-making to ensure the individual’s best interests are upheld.
- The enduring guardian: An appointed guardian may notice that you are no longer capable of making specific personal or lifestyle decisions and may begin to exercise their authority accordingly. However, it is imperative that the guardian refrains from presuming a lack of decision-making capacity without a thorough and appropriate assessment conducted by qualified professionals.
- Family members and carers: Family members or carers may observe changes in your decision-making ability and suggest that the EPG provisions should apply. However, the enduring guardian must rely on proper assessments by qualified professionals before assuming responsibility.
- The State Administrative Tribunal (SAT): In situations involving dispute or ambiguity regarding a person’s decision-making capacity or the application of an EPG, the SAT holds the authority to make formal determinations. The SAT can declare an EPG valid or invalid, revoke or vary its terms, or resolve disputes about its operation.
Practical scenarios and timing
Understanding when an EPG takes effect is best illustrated through practical scenarios:
- Progressive dementia: In cases of progressive conditions such as dementia, decision-making capacity often diminishes gradually. An enduring guardian may begin to operate in relation to complex decisions—such as those involving significant medical treatment—while you retain capacity for more routine or straightforward choices. Over time, the scope of the EPG may expand as capacity continues to decline.
- Sudden incapacity: Following events such as a stroke, serious accident, or acute illness, you may experience an abrupt and substantial loss of decision-making capacity. In such circumstances the EPG would become effective immediately for all relevant decisions you can no longer make.
- Mental health episodes: If you temporarily lose capacity due to a mental health issue, the EPG may apply until you are well again.
- Temporary medical situations: Situations such as post-operative unconsciousness or heavy sedation may result in a temporary inability to make decisions. The EPG may apply during these intervals and revert once capacity is restored.
Legal safeguards and protections in Western Australia
Western Australian law includes several important safeguards regarding when EPGs take effect:
- Presumption of Capacity: Adults are legally presumed to have decision-making capacity unless proven otherwise. An enduring guardian must not assume incapacity without credible and specific evidence relating to the decision in question.
- Least Restrictive Principle: Guardians are required to make decisions only in areas where the individual lacks capacity. If the individual can participate in the decision-making process, even with support, they should be actively involved.
- Best Interests Obligation: Decisions made under an EPG must reflect the individual’s best interests, taking into account their known values, preferences, and beliefs.
- Oversight by the SAT: SAT has the authority to review decisions made under an EPG and may intervene where a guardian is not acting appropriately or in accordance with legal obligations.
Common misconceptions and problems
Despite the legal safeguards in place, several misconceptions can lead to confusion or inappropriate activation of an EPG:
- “The family decides”: Family members do not have the authority to unilaterally determine that an individual lacks decision-making capacity. Activation of an EPG must be based on a proper assessment of capacity, and the individual’s views should be considered wherever possible. The presumption of capacity is a fundamental principle under the Guardianship and Administration Act 1990 (WA) (GA Act), and it can only be displaced by clear and cogent evidence of incapacity.
- “Once Activated, It’s Permanent”: Decision-making capacity is not necessarily static and it can fluctuate over time. If an individual regains capacity, the EPG ceases to operate in relation to those decisions the individual is once again able to make. Regular review of the EPG’s application is essential to ensure it reflects the current circumstances.
- “One size fits all”: Capacity is decision specific. An individual may retain the ability to make certain decisions while lacking capacity for others. The EPG should be applied selectively, based on the nature and complexity of each decision and the individual’s capabilities at the time.
- “Medical certificate required”: Although medical input is often beneficial in assessing capacity, there is no legal requirement for a formal medical certificate to activate an EPG. What is required is credible evidence of incapacity relevant to the specific decision at hand.
Practical tips for western australian residents
To maximise the effectiveness of your EPG when it is required, consider the following best practices:
- Careful Selection of Guardian: Appoint a guardian who understands your values, can make difficult decisions under pressure and is capable of making decisions in your best interests. It is essential that they respect your autonomy and act in accordance with your preferences wherever possible.
- Discuss your wishes: Engage in thorough discussions with your appointed guardian regarding your preferences across a range of potential scenarios is essential. Where appropriate, consider documenting these conversations to provide clarity and reference.
- Regular reviews: Regularly reviewing your EPG ensures it continues to reflect your current wishes and circumstances. This is particularly important as personal situations and relationships may change over time. Confirm that your chosen guardian remains suitable and willing to fulfil the role.
- Clear instructions: While an enduring guardian is not legally bound to follow specific instructions, offering detailed guidance about your values, beliefs, and preferences can assist them in making decisions that align with your intentions.
- Seek professional advice: Obtaining legal advice when preparing your EPG ensures it is correctly executed and tailored to your individual needs.
When problems arise
Disagreements may occasionally arise concerning when an Enduring Power of Guardianship (EPG) should take effect or how it should be applied. In such cases, several avenues are available to support resolution:
Seek medical assessment: A formal assessment by a qualified medical professional can provide clarity regarding an individual’s capacity to make specific decisions. These evaluations are often critical in determining whether the EPG should be activated.
Mediation: Where disputes involve family members or other parties, mediation can offer a constructive and non-adversarial method of resolving concerns. This process encourages open dialogue and mutual understanding, often avoiding the need for formal intervention.
SAT intervention: If informal approaches are unsuccessful, the SAT has the authority to make binding determinations regarding decision-making capacity and the operation of an EPG. SAT’s involvement ensures that decisions are made in accordance with legal standards and the best interests of the individual concerned.
Looking forward
An Enduring Power of Guardianship is most effective when everyone involved understands how and when it operates. Crucially, it’s not triggered by age or diagnosis alone – it is about your actual capacity to make specific decisions at specific times.
By understanding when and how an EPG takes effect, individuals can be assured that their personal wishes will be upheld and their interests protected should they lose the capacity to make certain decisions. The primary objective of an EPG is to ensure that a trusted person is legally empowered to assist with personal, lifestyle, and health-related decisions, while preserving the individual’s autonomy and dignity to the greatest extent possible.
Establishing an EPG is only the initial step. Equally important is ensuring that your appointed guardian and relevant family members are fully informed about its operation and responsibilities. Clear communication and shared understanding are critical to safeguarding your future wellbeing and ensuring that the EPG serves its intended purpose.
If you need help understanding EPG, get in touch with our estate planning lawyers. We are always happy to assist!
