.png)
This information is general and is not a substitute for legal advice. The Legal Services Commission provides free advice for most legal problems. Contact the Legal Helpline on 1300 366 424 or visit www.lsc.sa.gov.au or www.lawhandbook.sa.gov.au
A Power of Attorney appoints one or more persons to manage your financial and legal affairs while you are alive. The person you appoint to act on your behalf (your donee) can only do the things you authorise them to do. This can include accessing your bank accounts, spending your money to pay your bills, and buying and selling real estate on your behalf.
A General Power of Attorney allows the donee to act immediately, usually for a certain period (such as while you are overseas). You can continue to manage your affairs while a General Power of Attorney is in force.
A General Power of Attorney ends when you die or lose legal capacity. If you want someone to continue to act on your behalf in the event that you lose legal capacity, you must make an Enduring Power of Attorney.
An Enduring Power of Attorney can take effect immediately or only during periods when you do not have legal capacity (for example, during or following an illness or injury that affects your ability to understand matters or communicate your wishes). Making an Enduring Power of Attorney can ensure that your financial and legal affairs will be looked after by someone you know and trust.
Your donee must agree to act for you. You cannot make someone your donee without their knowledge or consent.
In South Australia, you can make a Power of Attorney if you are 18 years or older and you have legal capacity. No one can make a Power of Attorney for or on behalf of someone else.
An adult is presumed to have legal capacity. Legal capacity means that you understand the nature and effect of making a Power of Attorney and can communicate your wishes.
You cannot make a Power of Attorney if you have lost legal capacity. If legal capacity is in doubt, it is best to get a doctor’s written opinion confirming that you understand the nature and effect of the document at the time you sign it.
The easiest way to make an Enduring Power of Attorney is to buy an Enduring Power of Attorney Kit produced by the Legal Services Commission. The do-it-yourself kit includes the required forms, detailed instructions and answers to common questions. If you still have questions or concerns, seek legal advice.
You should first ask yourself what powers you want to give to the donee. If you simply want someone to operate your bank account for you, you may not need a formal Power of Attorney. Ask your bank what form of authorisation they need to allow someone to act on your behalf.
If you want to give the donee other powers, you must complete an Enduring Power of Attorney Form. You may wish to prepare 2 original copies: one for you to keep and register if needed, and one for each donee.
Once your Power of Attorney has been completed and signed by you and your donees, you have a valid Power of Attorney. It does not need to be registered. However, if a donee needs to buy or sell real estate on your behalf, your Power of Attorney needs to be lodged with Land Services SA. A fee is payable for lodgement.
If a donee does not need to deal with land now but might in the future, the form can still be lodged immediately to check that it has been completed properly. This avoids the risk that the form will need to be corrected later, which may not be possible if the donor does not have legal capacity when a correction is needed. Alternatively, the form may be kept in a safe place and lodged when the necessity arises.
A bank will usually want a copy of your Power of Attorney for their records. For shares, you may need to register your Power of Attorney in the company’s share register.
As a general rule, a donee can do anything that you can do for yourself, except things you must do personally such as marrying, voting and making a will.
For example, a donee may, on your behalf:
A donee has an absolute and unconditional duty to always act in your best interests. As your representative, they should make decisions consistent with your known wishes wherever possible. Other responsibilities include finding out your income, assets and financial obligations, paying from your own money your bills and accounts when they fall due, selling your property if necessary to fund other
accommodation such as residential care, and keeping accurate records and accounts of all dealings.
Any interested person can ask to see the records. Other people may disagree with what the donee does with their power and challenge their actions. A donee cannot be paid for their work, except for any out-of-pocket expenses directly connected with carrying out the Power of Attorney. They will need to keep receipts to prove these costs.
Similarly, even if your donee believes they are a beneficiary in your will, having a Power of Attorney does not give them early entitlement to your assets. If they act improperly, they are personally responsible to pay for any losses caused. They may also be guilty of a criminal offence.
If you lose legal capacity, a donee under an Enduring Power of Attorney must continue to act for you. If they want to stop, they must ask the Supreme Court to remove them or have an administrator appointed by SACAT.
A will comes into effect after you have died and sets out who you want to inherit your estate. A Power of Attorney allows someone to manage your financial affairs while you are alive. When you die, your Power of Attorney (whether General or Enduring) ends automatically. It is important to have both an Enduring Power of Attorney and a will.
A Power of Attorney does not give the donee the right to make decisions about your welfare or medical treatment. It only deals with legal and financial matters.
For non-financial matters, you should complete an Advance Care Directive. This allows you to:
An Advance Care Directive only has force during periods when you do not have legal capacity. It has no effect after you have died.
You may have heard of documents such as Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction. If you have completed one of these documents in the past, it will still be legally effective. If your circumstances or preferences have changed, you can make an Advance Care Directive to replace your old directive. For more information about how to complete an Advance Care Directive, visit www.advancecaredirectives.sa.gov.au or call 1300 366 424.
An Enduring Power of Attorney and an Advance Care Directive are often referred to together as a living will. We recommend you have all 3 – a Power of Attorney, an Advance Care Directive and a will – to safeguard your future and ensure your wishes are respected throughout your life and after you die.
You should always be careful when giving someone the power to act for you. Make sure your donee is someone you trust. You are giving that person authority to deal with your financial affairs.
A word of warning: your donee may use their power against your interests. Your donee may sell your house and take the money. If you lose legal capacity, you may not even realise what has happened. It is a criminal offence for a donee to misuse a Power of Attorney, but no agency oversees the use of the power to make sure donees are doing their job properly. If a donee has acted improperly, the Supreme Court can remove the Power of Attorney or SACAT can appoint an independent administrator.
You can protect yourself. You can limit the powers you give so that the donee cannot deal with all of your property. If that does not suit your needs, you can appoint 2 people to act jointly, so that they both have to sign before anything can be done. You can also make your Enduring Power of Attorney come into effect only if you lose legal capacity, and require that a doctor certify that you have lost legal capacity.
You can revoke (cancel) your Enduring Power of Attorney at any time while you still have legal capacity. You should do this in writing, and send a copy to the donee and to anyone that the donee may have dealings with, such as a bank or Land Services SA. A revocation form is included in the Enduring Power of Attorney Kit.
You can access the Enduring Power of Attorney Kit for free online at lsc.sa.gov.au or you can buy a hard copy from:
If you have not made an Enduring Power of Attorney while you have legal capacity, your relatives may not be able to handle your affairs informally.
While banks, Centrelink and hospitals are generally sympathetic and will help with simple matters, it may be necessary to apply to SACAT for an Administration Order. These orders are made for the protection of persons who cannot handle their financial affairs.
If there is no Enduring Power of Attorney, the South Australian Civil and Administrative Tribunal (SACAT) may appoint as administrator the Public Trustee, a trustee company or an individual such as a family member or friend, an accountant or a lawyer. In deciding who should be appointed, the Tribunal must consider:
Often, the Public Trustee is appointed as the administrator, and a friend or relative is appointed as a liaison person. An administrator has similar powers to a Power of Attorney, but they are supervised by SACAT.
For further information, call:
Public Trustee: 8226 9200 (toll free 1800 673 119)
SACAT: 1800 723 767
7 January 2025
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
.png)
.jpg)
.jpg)
.jpg)
Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
.png)
.png)
