Power of Attorneys (POA) and Enduring POAs (EPOAs)
A Power of Attorney is a legal document that enables an adult who has legal capacity (donor) to appoint a person or agency as their attorney, to make property and financial decisions on their behalf.
An Enduring Power of Attorney continues to operate after the donor loses legal capacity. An EPOA ends on the death of the donor.
At this point, the provisions of the persons will commence. Control is handed over to the executor of the will as a Deceased Estate.
In the event of a lot owners’ death, the type of tenancy shown on the Certificate of Title needs to be taken into consideration. A Landgate search would be required, which will advise you whether the transfer of ownership is currently being ‘dealt with’, or has been completed and registered.
Guardianship and Administration Act 1990
The SAT often asks the Public Advocate to prepare a report about whether a guardian or administrator is required and make recommendations about who should be appointed. If no other person is suitable to be appointed as a guardian, the SAT can ask the Public Advocate to take on that role.
The Public Trustee is an independent statutory officer created under WA legislation. The Public Trustee offers independent, professional trustee and asset management services to the WA community. These include drafting wills and Enduring Power of Attorney, administering deceased estates, providing support for executors, financial administration and trust management services.
SAT is able to make decisions in accordance with the Guardianship and Administration Act. A guardianship order appoints a guardian to make personal, medical and lifestyle decisions. An administration order appoints an administrator to make financial decisions.
A SAT appointment can cover all decisions (a plenary appointment), or it can be limited to certain types of decisions (a limited appointment). The type of appointment depends on the person's best interests. Once someone has lost their capacity to make decisions, then a guardianship or administration order can be made.
The person who is the subject of the application may have an existing enduring power of guardianship or power of attorney. These are similar to the guardianship and administration orders discussed above and must be put in place while someone still has their decision-making capacity. SAT can deal with an enduring power if it is incompatible with a guardianship or administration order.
A guardian or administrator can be appointed for any period, up to a maximum of five years. When a guardianship or administration order is due for review, SAT organises a review to make sure the current situation is working well. A review process can confirm the order, revoke it, or replace it with an order on different terms.
Sole Registered Proprietor
If there is only one owner of a property, it generally means the share of the property will be distributed in accordance with the will when the owner passes away or is under the Administration Act (Public Trustee) if there is no will.
An executor/s or an administrator/s will need to be appointed to take control of the assets and the property when the owner passes away.
The executor/s or administrator/s will need to apply for Probate or Letters of Administration from the Probate Office in WA before any documents can be lodged with Landgate to transfer the ownership of the property. Recording the passing of the sole Registered Proprietor with Landgate will require the lodgement of an Application by Personal Representative.
Where two or more owners own land as joint tenants the ownership of the land transfers to the other joint tenant/s recorded on the title following the passing of a joint tenant. This is commonly referred to the right of survivorship.
A joint tenant it means:
- The owners jointly own the property
- There are no specified shares in the ownership
- If one owner dies, the other owner/s automatically acquire that person's interest
Although the interest of a joint tenant ceases immediately on death and the surviving joint tenant’s interest is immediately enlarged, the legal estate does not change until the required application is made and the Landgate register amended.
Recording the passing of a joint tenant with Landgate requires the lodgement of a Survivorship application.
Tenants in Common
Tenants in common is where there are two or more owners of land and where each owner owns an individual share of the whole of the property.
A tenant in common means:
- An owner owns a share of the whole of the property.
- If one owner passes away, the share of the property is generally distributed in accordance with the will (if there is a will) or under the Administration Act (Public Trustee) if there is no will.
An executor/s or an administrator/s will need to be appointed to take control of the estate of a deceased proprietor where they registered as a tenant in common on the title.
The executor/s or administrator/s will need to apply for Probate or Letters of Administration from the Probate Office in WA before any documents can be lodged with Landgate to transfer the ownership of the property. Recording the passing of a tenant in common with Landgate requires the lodgement of an Application by Personal Representative.
Important! There are specific requirements under the Regulations regarding Arrangements for recognition of vulnerable persons specifically for Termination proposals.
Remember! You cannot change the name of the lot owner, unless it has been changed with Landgate on the Certificate of Title. A simple free search can determine this by CS&S, who is responsible for making such amendments.
Pre-fix the name on the lot card, with POA if that is the documentation you received and saved to the lot card in PIQ.
Or the following for executor documentation (for example);
(Jacqueline Wisdom – Executor of the Estate of the late Mark Samson) Mark Samson