Estate Planning and Power of Attorney in WA

Four Documents, One System

Most people in Western Australia think of estate planning as writing a Will. The Will handles what happens after death. But there's an equally important question that a Will can't touch: who manages your finances and makes personal decisions for you if you lose capacity while you're still alive?

Western Australia's substitute decision-making framework uses four separate instruments, each covering a different domain. Missing an EPA or EPG can create a gap that the State Administrative Tribunal may need to fill — slowly, publicly, and at the cost of your family's autonomy.

The Full WA Estate Planning Framework

Enduring Power of Attorney (EPA) — Covers financial and property decisions during your lifetime. You appoint an attorney to manage bank accounts, pay bills, handle investments, and execute property transactions. You choose whether it takes effect immediately or only when the SAT formally declares incapacity.

Enduring Power of Guardianship (EPG) — Covers personal, lifestyle, and non-urgent medical decisions. You appoint a guardian to decide where you live, what support services you receive, and everyday healthcare choices. Unlike the EPA, the EPG only activates when capacity is lost — there's no immediate-effect option.

Advance Health Directive (AHD) — Records your legally binding instructions about specific medical treatments you consent to or refuse. An AHD overrides both the EPG guardian and the statutory "person responsible" hierarchy. If you've documented a refusal of life-sustaining treatment in your AHD, no guardian or family member can override that instruction.

Will — Governs what happens to your assets after death. Names an executor who applies for probate and distributes the estate according to your instructions. Without a Will, the Administration Act 1903 (WA) distributes your estate according to a statutory formula — which may not reflect your actual wishes.

The critical boundary: the EPA and EPG operate while you're alive. The moment you die, both instruments terminate instantly. Your attorney's authority ends, and the estate passes to the executor or administrator; a formal court grant is needed before assets can be legally transferred or sold.

Why the Gap Between Life and Death Matters

The transition from EPA attorney to executor is the most common point of confusion in WA estate planning. Here's what actually happens:

1. While you're alive and lack capacity, an active EPA attorney manages your finances
2. At the moment of death, the attorney's power ends — immediately and automatically
3. Your nominated executor handles the estate, but a formal court grant is needed before assets can be legally transferred or sold (typically 3–6 weeks after filing)
4. During that probate gap, bank accounts in the deceased's sole name are frozen

If the same person is both the EPA attorney and the Will's executor, they need to understand that their source of authority has changed. Transactions made "under the EPA" after the donor's death are legally void. The executor must apply for probate and then act under the grant's authority.

If different people hold the EPA and executor roles, the handover requires coordination. The attorney must account for all transactions made during the period of incapacity and surrender all records to the executor.

Private Executor vs Public Trustee

You can appoint anyone as your executor: a family member, a friend, a solicitor, or the Public Trustee of Western Australia.

Private executor (family member or friend):

• May avoid professional executor fees, but the estate still pays court filing and other administration costs (the probate filing fee is $418 as of 1 July 2026)
• Full family control over timing, asset management, and distribution
• Requires the executor to navigate Landgate, banks, and the Probate Office themselves
• Can be overwhelming for someone who's simultaneously grieving

Professional executor (solicitor):

• Fees vary with the work and complexity of the estate, plus disbursements
• Professional handling of complex estates with property, business interests, or interstate assets
• Reduced family burden during an emotionally difficult period

Public Trustee WA:

• Operates on an effort-based fee model — charges based on the complexity of work
• Establishment fee of $469 (effective 1 July 2026) for commencing personal financial administration
• Reliable for estates where no suitable family member is available
• Known for being bureaucratic and slow — families frequently report frustration with response times and decision-making speed
• Once appointed, removing the Public Trustee requires a formal SAT review hearing

For most families, appointing a trusted family member as executor — with a solicitor available for specific complex tasks like property conveyancing — gives the best balance of cost, control, and competence.

Building the Full Document Set

The practical sequence for getting all four instruments in place:

Step 1: EPA and EPG together. Both documents use the same witnessing requirements (two witnesses, one authorized under Schedule 2 of the Oaths, Affidavits and Statutory Declarations Act 2005), so schedule one signing ceremony for both. If the donor owns real property, register the EPA at Landgate ($225.10) and submit two originally signed copies.

Step 2: Advance Health Directive. Complete the AHD form from the WA Department of Health. At least one treatment decision in Part 4 must be documented for the directive to be valid. Distribute certified copies to the GP, local hospital, and immediate family.

Step 3: Will. Whether self-drafted or professionally prepared, the Will should name an executor, specify beneficiaries, and address any real property. For estates involving Landgate-registered property, the executor will eventually need a Grant of Probate to lodge a Transmission Application (Form A1) transferring title.

Step 4: Store and distribute. Keep originals in a fireproof safe or with a solicitor. Give certified copies to all appointed attorneys, guardians, the GP, and the executor. Banks and aged-care providers will want to see copies of the EPA before they engage.

The Cost of Gaps

Every missing document creates a specific vulnerability:

• No EPA: family applies to SAT for an administration order (eight-week wait, Public Trustee may be appointed)
• No EPG: medical and lifestyle decisions fall to the statutory "person responsible" hierarchy, which may not reflect your preferences
• No AHD: treatment decisions are made by whoever sits at the top of the person-responsible hierarchy — they may not know your wishes about life-sustaining treatment
• No Will: estate is distributed under the intestacy formula ($546,000 to spouse plus one-third of residue if there are children, under the 2025 amendment order), which may not match your intentions

The Western Australia Power of Attorney Kit covers the EPA and EPG components of this framework end to end — from capacity assessment through signing, registration, bank acceptance, and the eventual transition to executor when the EPA terminates at death. It's designed to work alongside a Will, not replace it, and includes a document distribution log so nothing gets lost in the handover between instruments.

See more Western Australia guides →