Capacity Required for an Enduring Power of Guardianship

In order to validly execute an enduring power of guardianship (EPG) in Western Australia, the donor must have "full legal capacity" at the time of making the EPG (Guardianship and Administration Act 1990 (WA) s 110B).

As stated in RS and ANOR and DV [2011] WASAT 144 at [15], for a person to make a valid EPG appointment, he/she must understand "the nature and effect of the formal document he is signing and the nature and extent of the powers he is entrusting to his substitute decision-maker." More specifically, "A person with full legal capacity to make a valid EPG will have a clear understanding of the nature and effect of the document and its implications" (RS and ANOR and DV at [15]).

The question of whether a donor had requisite capacity is one of fact, to be determined based on the evidence in each case.

In RS and ANOR and DV, the Tribunal heard expert evidence that the donor, DV, suffered from chronic schizophrenia which impacted his capacity, as well as evidence that he had reduced intellectual functioning (RS and ANOR and DV at [16]-[20]).

The Tribunal also questioned DV directly about his understanding of the EPG, and determined from his answers that he did not adequately understand the document (RS and ANOR and DV at [22]).

Based on all the evidence, the Tribunal concluded that DV lacked capacity to make a valid EPG (RS and ANOR and DV at [23]).

The expert evidence indicated that DV's schizophrenia alone meant he lacked capacity (RS and ANOR and DV at [19]), citing Dr C's opinion.

This accords with the general principle from Re BKR [2009] WASAT 152 at [43] that "a person who suffers from such a mental illness as schizophrenia or dementia may lack capacity notwithstanding competency to manage his/her affairs on a day-to-day basis."

In summary, for an EPG to be valid under the laws of Western Australia the donor must have full legal capacity to understand the nature and effect of the document at the time of making the EPG. Determining capacity requires examining the specific circumstances of each individual donor.