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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
If you give another person a 'power of attorney', you give that person the power to act on your behalf in relation to your financial and legal affairs (for example, to buy and sell things for you or operate your bank account).
Giving a 'power of attorney' does not mean you lose control over your affairs. You can still deal with all matters, while your donee (the person you appoint to act on your behalf) can do those things that you have authorised. The donee must agree to act for you; you cannot make someone your donee against their wishes.
In South Australia, any person who is 18 years or older and has legal capacity can make a Power of Attorney. No one else can make a Power of Attorney for you.
An adult is presumed to have legal capacity. In the context of making a General or Enduring Power of Attorney, legal capacity means that you understand the nature and effect of making the document and are able to communicate it.
A General Power of Attorney can be created for a specified time. Otherwise, it ceases when you die or if you lose legal capacity. If you wish to give someone the power 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 continue to operate after you have lost legal capacity (for example, if you suffer from an illness or injury that affects your ability to understand matters or communicate your wishes). Taking the time to make an Enduring Power of Attorney means your financial and legal affairs can be looked after by someone you know and trust.
You cannot make a Power of Attorney after you have already lost legal capacity. To be capable of signing a Power of Attorney, you must understand the nature and effect of making the document. If legal capacity is in doubt, it is best to get a doctor’s written opinion confirming that you are able to understand the nature and effect of the document at the time of signing.
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 do not need a formal Power of Attorney. Contact your bank and ask them 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 will usually need to complete at least two original copies: one in case it needs to be deposited and one for each donee to use.
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 it is not necessary to deal with land now but it might be in the future, the form can still be lodged immediately to ensure that it has been completed properly. This avoids the risk that the form will have to be corrected later, which may not be possible if the donor has lost legal capacity when any correction needs to be made. 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 have 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 insist on seeing 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 they believe they are a beneficiary of 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, your donee must continue to act for you. If they want to give up the power, they must arrange to have it removed by the Supreme Court or have an administrator appointed by SACAT.
A will has legal force after your death. A Power of Attorney is for your financial affairs while you are alive. When you die, your Power of Attorney (whether General or Enduring) ceases automatically. That is why 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:
You may have heard of documents such as Enduring Power of Guardianship, Medical Power of Attorney and Anticipatory Direction. If you have completed one or more of these documents in the past they will still be legally effective or you can make an Advance Care Directive to replace them. For more information about how to complete an Advance Care Directive, visit www.advancecaredirectives.sa.gov.au.
By making both an Enduring Power of Attorney, which covers legal and financial affairs, and an Advance Care Directive, you are essentially making a 'living will'. This can ensure your wishes are known if you become unable to communicate or make decisions for yourself.
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 complete authority to deal with your financial affairs.
A word of warning: your donee may use their power against your interests. For example, the donee could 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 two 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 contact:
Public Trustee: 8226 9200 (toll free 1800 673 119)
SACAT: 1800 723 767
21 November 2023
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