Enduring Power Of Attorney
Plan for peace of mind. An Enduring Power of Attorney ensures your financial and legal affairs are managed by someone you trust, even if you’re unable to make decisions yourself.
Estate Planning Services
An Enduring Power of Attorney is a legal document used to appoint one or more people to manage your financial matters. This may include dealing with your money and bank accounts, paying your bills and buying or selling assets on your behalf.
You can choose whether an Enduring Power of Attorney becomes effective immediately or, if it only becomes effective if you suffer a legal (mental) incapacity through illness or injury.
Any person you appoint as your “Attorney” must be someone you trust to act in your best interests.
If you lose legal (mental) capacity but do not have an Enduring Power of Attorney, your loved ones (or the Public Advocate) would need to seek Administration Orders from the South Australian Civil and Administrative Tribunal (SACAT) to enable them (or the Public Trustee) to manage your finances.
Frequently Asked Questions
What is a Donor
If you are making an Enduring Power of Attorney, you are the Donor (i.e. you are donating your power). The person you are appointing is known as the Donee, and this person will act on your behalf in relation to financial matters.
What is a Donee?
A donee (also known as an Attorney or Appointee) is the person who is receiving the power to act on a person’s behalf. A donee should be a person who you trust completely, as you are entrusting your finances to that person.
What is Legal / Mental Capacity?
When you make an Enduring Power of Attorney, you are the Donor. You appoint a person to act on your behalf in relation to financial matters. This person is known as the Donee or Attorney and should be a person who you trust completely to act in your best interests when managing your finances.
Who should I appoint as my Attorney(s)?
You should consider carefully who to appoint as your Attorney. The person you appoint should have your complete trust.
If you appoint more than one person, you need to consider whether the attorneys should act together “jointly” or if you trust either of them to also act alone “jointly and severally”.
It is important to obtain legal advice based on your circumstances.
Should I limit the power of Attorney?
When should I change or revoke my Enduring Power of Attorney?
You need to make a new Enduring Power of Attorney if your Attorney dies, and if one of your “jointly” appointed Attorneys die (i.e. the remaining Attorney cannot act alone).
If you no longer trust the Attorney you have appointed, you should take urgent steps to revoke the Enduring Power of Attorney and appoint another Attorney that you trust to act in your best interests.
If you revoke your Enduring Power of Attorney and/or make a new Enduring Power of Attorney, you must notify everyone who has a copy of that document (e.g. bank, accountant) and any person who was appointed previously as your Attorney.
What is the role and responsibility of an Attorney?
When the Enduring Power of Attorney document becomes active, the attorney becomes legally responsible to manage your finances. The attorney does not become responsible for your debts.
An Enduring Power of Attorney can become effective immediately or only when a doctor states that you no longer have legal (mental) capacity and can no longer make decisions.
The attorney has an absolute duty to act in your best interests at all times. It is an offence to act otherwise. An attorney who acts improperly can be held personally and criminally liable for losses – the attorney’s house, valuables and income may be at risk.
What if there is no Enduring Power of Attorney?
If a person loses mental / legal capacity and has not made an Enduring Power of Attorney in advance, it will be necessary for an application to be made to the South Australian Civil and Administrative Tribunal (SACAT) for an administrator to be appointed to manage the person’s financial affairs.
You may wish to restrict the attorney’s power (e.g. state that they cannot sell house) but this may have negative consequences. For example, if you lose capacity but need to sell your house to move into residential care, the document will not allow the sale.
You may wish to continue to make certain donations or gifts – this will ensure that your Attorney can continue to make the gifts and donations on your behalf.
It is important to seek legal advice about your circumstances to ensure that the document will serve your intended purpose.