What is an Enduring Power of Attorney SA?

A Power of Attorney is a legal document that gives a person or an organisation the power to manage your assets and financial affairs while you are alive.

It is one of the most important parts of your personal estate planning and you should think about appointing an attorney early.

We can help eligible customers appoint the Public Trustee as their attorney.

Power of Attorney documents

All Power of Attorney documents must be signed by you while you have the legal capacity to understand what a Power of Attorney is, and you agree to the conditions.

The attorney you have selected must also agree, and sign an acceptance of the appointment.

An attorney is responsible for paying your bills and accounts using your money.

Sometimes they may be required to buy or sell property on your behalf if it is in your best interests (e.g. selling property to enable payment of an aged care facility entry fee).

Your attorney must keep accurate records of all transactions and be able to explain any decisions they have made on your behalf.

An Enduring Power of Attorney is one that continues to be in effect, even if you lose your legal capacity due to disability or illness.

Your attorney can continue acting on your behalf, but the legal document must be an Enduring Power of Attorney.

Any Power of Attorney not prepared by the Public Trustee is not automatically enduring.

You can appoint an attorney now, but may not want them to take on the role just yet.

If you are an eligible customer, the Public Trustee can help you prepare all the documentation and hold onto it for you. This is known as a ‘sleeping’ Enduring Power of Attorney.

You can arrange for your attorney to only start acting on your behalf when a medical advisor is of the opinion that you are no longer able to manage your financial affairs.

What happens if I don’t have an attorney?

If you have not appointed an attorney and you become incapable of managing your own financial affairs, the South Australian Civil and Administrative Tribunal (SACAT) can appoint a financial administrator for you.

This person will act in the same way as your attorney but will be required to report at regular intervals to SACAT and us at the Public Trustee.

While the person appointed will have your best interests in mind, they might not really know what your wishes and needs are.

They might also not have been who you would have chosen for yourself.

SACAT can also appoint us as your financial administrator.

Have you thought about what would happen if you were seriously injured or lost capacity to make decisions for yourself? Who would look after your legal affairs? Who would make decisions regarding your medical treatment?

These are issues many of us would prefer not to think about.  While it’s an uncomfortable idea to think that one day you may lose the ability to make decisions for yourself, it is important to know that if you do, someone you trust will be appointed to make decisions on your behalf. The only way to ensure that the person appointed is someone you trust to make the right decisions for you is to draft Power of Attorney and Advance Care Directive documents whilst you are fit and healthy. The documents may never be used; however, it will be too late if you lose capacity without having previously appointed someone to act on your behalf.

What are the Enduring Power of Attorney and Advance Care Directive?

The Enduring Power of Attorney is a person or people appointed by you who have legal power to make financial and/or property decisions on your behalf if you are unable to do so. If death occurs, the Enduring Power of Attorney ceases at the time of death and legal administrative power is then transferred to the Executor of the Estate.

The Advance Care Directive allows you to set out clear legal arrangements for your future health care, end of life care, preferred living arrangements and other personal matters.  You will also appoint a person or people you trust to carry out your wishes should you be unable to do so yourself.

Early Inheritance Syndrome and Elder Abuse

Early inheritance syndrome and elder abuse are unfortunately becoming more common.  The awareness of this in our society is also increasing with Government, legal systems and services attempting to address this increasing issues.  As estate lawyers we see this awful reality far too often and in families where it would be least expected.

ABC radio have run a number of programs recently highlighting the issue.  David Lewis on the R N Background Briefing program on Sunday 25 September 2016  discusses the problem with people personally effected by early inheritance syndrome and elder abuse.

Unfortunately ……… many elderly people are being deprived of their life savings, and often by the people they trust the most; I’m talking about their kids and their carers.

On the show today, a son forces his mother out of her own home. A carer steals an unbelievable amount of money from a blind man. And as his kids fight over his estate, a father struggles to pay his nursing home fees. It’s called financial elder abuse, and it could easily happen to you or someone you know.

You can listen to this conversation in full here.  The final comments from Pam on this program raise the importance of being planned so that your future can be managed as you would wish.

I know this has taught me that I need to sit down now and work out my future so I can protect myself, because you never know what drives a human…………………………..or what may happen in the future, but you have to protect yourself.

…..you thought…………….it could never happen in your family but I can assure you it certainly does.

Advance Care Directives and Enduring Power of Attorney = Peace of Mind

In South Australia the crucial documents in making sure your future is well planned are the Advance Care Directive and Enduring Power of Attorney.  Part of this process of documentation will be the careful selection, appointment and acceptance of decision makers that you trust to act on your behalf and with your well-being in mind.  It is important that the document is not a secret and is not left to gather dust for many years so that is is out of date when required.  Make sure your family knows who your decision makers are and where your documents can be found – there will be no-one else ensuring your wishes are being carried out.  If you are uneasy about your decision makers for any reason, make the changes while you are able as you cannot do this if your capacity is impaired.

We advise you to seek the help of our estate lawyers to draft documents for the Power of Attorney, Advance Care Directive so that you can be confident your future is in the hands of someone you trust. Remember that you can change your mind about your Power of Attorney and Advance Care Directive appointments at any time whilst you retain the capacity to do so.

If you haven’t yet made your wishes clear, don’t leave it too late.

Contact our Adelaide office on 08 84519040 today.

Further Information for wills power of attorney and advance care directives

Wills and Estates

Testamentary Capacity and Statutory Wills

Your Partner and Your Will – POA and ACD

I have a will. What is an ACD and EPA?

A power of attorney in South Australia is a legally binding document which gives someone the power to act as your agent and make decisions on your behalf. In SA, the document is referred to as a ‘Deed’, the person making the power of attorney is known as the ‘donor’ and the attorney is referred to as the ‘donee.’

Powers of attorney or POA are governed by the Powers of Attorney and Agency Act 1984 (SA).

Types of powers of attorney

There are two types of powers of attorney in SA; the enduring power of attorney and the general power of attorney. The type of document that you will require will depend on your individual circumstances and reason for requiring the appointment of an attorney.

General power of attorney

Typically, you would want to appoint a general power of attorney when you require someone to act on your behalf in specified circumstances.

As an example, let’s say that you are in the process of selling your house and you are suddenly required to travel overseas for work. By appointing a general power of attorney you can ensure that the sale does not fall through by having someone else affect the sale of the property on your behalf whilst you are out of the country.

This does not mean that under the general power of attorney the donee has free reign to deal with your financial affairs as they see fit. It merely enables them to act on your behalf for the particular purpose of selling your property.

The general power of attorney restricts the donee’s power through the specific conditions, limitations and exclusions built into the Deed.

Enduring power of attorney

The circumstances which give rise to appointing an enduring power of attorney are slightly different to those when appointing a general power of attorney. Unlike the general power of attorney which cannot operate when the donor loses the capacity to enter into a legally binding document, the enduring power of attorney continues to operate despite the donor’s incapacitation.

In many circumstances the enduring power of attorney is created specifically for this purpose, so that once the donor’s health begins to decline, and they are unable to make decisions for themselves, someone is there to take care of their assets and manage their financial affairs on their behalf.

Who can be an attorney

Who you choose to appoint as your attorney / donee is up to you. There are no restrictions on appointing family members or relatives in SA, even if they are nominated as a beneficiary in your Will.

If you so choose, you can appoint more than one donee. If you decide to appoint more than one donee, you have the choice of appointing them jointly or joint and severally.

For example, if you wish to appoint both of your sisters as your donees, you can appoint them jointly which means that they must act together and they must agree before any action can be taken. Alternatively, if you were to appoint them joint and severally, this would mean that they can act together or should one of the sisters no longer wishes to act, the other could act individually without rendering the Deed invalid.

Obligations of the attorney

The law imposes an obligation on attorneys / donees to act with diligence and at all times protect the interests of donor. This includes keeping up to date and accurate records for all financial transactions and dealings. If the donee fails to protect the donor’s interests, they may be liable to compensate the donor for any loss he or she may have suffered as a result.

Limitations on appointing a done under a power of attorney

As with any legal document, there are always going to be requirements that must be met in order for the document to be legally binding. When it comes to appointing a power of attorney, at the time of creating the document the donor (the person appointing the power of attorney) and the donee (also referred to as the attorney) must both be 18 years of age or over and be of sound mind.

The Office of the Public Advocate’s explanation of mental capacity is a useful resource in understanding what sound mind means in the context of powers of attorney.

How to make a general power of attorney in South Australia

If you decide that you want to appoint a power of attorney there are a few ways you can go about it. You can either seek the assistance of a legal practitioner or you can go online and download the form for free and attempt it yourself.

Keep in mind that you will need to have the signing of the document witnessed by a disinterested party in order for it to be legally valid. If the general power of attorney provides the power for your attorney / done to deal with real estate that you own in South Australia then the Deed will need to be registered with the Land Titles Office.

How to make an enduring power of attorney in South Australia

The making of an enduring power of attorney is a little more complex and requires that the signing of the document be witnessed by a Solicitor, Proclaimed Police Officer or Justice of the Peace.

As with the general power of attorney, there is a do-it-yourself option. The Legal Services Commission of South Australia offers an enduring power of attorney do-it-yourself kit which comes with a step-by-step guide or you can download the form for free online and attempt it yourself.

Alternatively, you can engage the services of a solicitor or have the Public Trustee draft your power of Attorney if you decide to appoint the Public Trustee as your attorney / donee or as the substitute donee after your partner or children.

Revoking a power of attorney in South Australia

There are certain circumstances which will automatically revoke a power of attorney. These include:

• The death of the donor;
• The expiration of the power of attorney where an end date has been specified;
• If the property subject to the power of attorney is destroyed;
• If either the donor or donee notifies the other in writing that it is revoked; or
• For a general power of attorney, the donor becomes incapacitated.

Revoking an enduring power of attorney once the donor has become incapacitated is not as simple. In this situation a donee can only stop acting on behalf of a donor by making a Supreme Court application or have their appointment revoked by a South Australian Civil and Administrative Tribunal (SACAT) Administrator. In the situation where a donor has become incapacitated and the only appointed donee has died, an interested party can apply to the Supreme Court for an order to revoke the power of attorney or have the donee substituted.

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