An Enduring Power of Attorney (EPA) is an important estate and incapacity planning document that allows you to appoint a trusted person, known as your attorney, to make decisions about your property and financial affairs.
An EPA can continue to operate even if you subsequently lose legal capacity. However, if your attorney may need to deal with real estate that you own in Western Australia, there is an additional consideration: whether your EPA should be registered with Landgate.
Do I Need to Register My EPA with Landgate?
Not every EPA needs to be registered with Landgate.
If your attorney is only required to manage matters such as your banking, investments, bills or other financial affairs, registration with Landgate is generally not required.
However, if your attorney needs to sell, transfer, mortgage or otherwise deal with real property on your behalf, the EPA must be lodged with Landgate before it can be used for the relevant land transaction.
For this reason, some people choose to register their EPA with Landgate in advance, rather than waiting until their attorney actually needs to deal with their property.
Why Register Your EPA in Advance?
Registering your EPA with Landgate in advance can make things easier for your attorney if they need to deal with your property in the future.
This can be particularly important if you have lost capacity and your attorney needs to act quickly.
For example, your attorney may need to sell your home to fund accommodation or aged care expenses, deal with an investment property, or otherwise manage your property at a time when you are no longer able to do so yourself.
If the EPA has already been registered with Landgate, one additional administrative step has already been completed and your attorney may be able to proceed with the required property transaction more efficiently.
Registering the EPA in advance can therefore provide greater certainty and reduce the risk of unnecessary delays at a time when your attorney may already be dealing with difficult circumstances.
What Happens When an EPA Is Registered?
Once an EPA has been lodged and accepted by Landgate, it is recorded for the purpose of future land transactions undertaken by your attorney on your behalf.
Importantly, registering an EPA does not transfer ownership of your property to your attorney.
Your attorney does not become an owner of your property simply because they have been appointed under an EPA, nor does registration give them powers beyond those granted by the EPA itself.
Registration simply allows the attorney to rely upon the authority already given to them under the EPA when dealing with your land.
Your attorney must continue to comply with the terms of the EPA and their legal obligations under the Guardianship and Administration Act 1990 (WA).
Should Everyone Register Their EPA?
Not necessarily.
Whether it is worthwhile registering an EPA with Landgate will depend on your circumstances, including whether you own real property and the likelihood that your attorney may need to deal with that property in the future.
For someone who owns a home or investment property, particularly where the EPA forms part of broader incapacity and estate planning, there can be practical advantages in attending to registration while the donor is still able to manage their own affairs.
It is also important to remember that registering an EPA with Landgate does not activate the EPA or change when your attorney is permitted to act. That will depend on the terms of the EPA itself.
What if My EPA Has Not Been Registered?
If your EPA has not previously been registered, this does not necessarily mean that your attorney cannot deal with your property.
The EPA can generally be lodged with Landgate when it becomes necessary for the attorney to undertake a land transaction, provided the document satisfies the applicable requirements.
However, dealing with registration only when an urgent property transaction arises can create an additional administrative step at an already difficult time.
This is one of the reasons why registration may be considered as part of your estate planning rather than being left until it becomes necessary.
Need Assistance Registering Your EPA?
An EPA is a powerful legal document and ensuring that it can be used effectively when required is an important part of planning for the future.
At Fort Knox Legal, we can advise whether registering your EPA with Landgate is appropriate for your circumstances, review your EPA to ensure it meets the relevant requirements, and prepare and lodge the necessary documentation with Landgate on your behalf.
If you already have an EPA but are unsure whether it has been registered - or whether registration is necessary - our team can also assist you in determining its current status and what, if anything, needs to be done.
Contact Fort Knox Legal to arrange an appointment and ensure that your property and financial affairs can be managed effectively if you are ever unable to manage them yourself.
You are welcome to call us on (08) 9200 1833 or email info@fkls.com.au to arrange an appointment.