Enduring Power of Attorney (SA)

An enduring power of attorney is a legal document that allows you to nominate one or more persons (referred to as attorneys) to act on your behalf. An enduring power of attorney gives the attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf.

The attorney’s power continues even if for any reason you lose your mental capacity to manage your own affairs. Once you lose your mental capacity you cannot revoke this power of attorney. If you want the power of attorney to cease if you lose your mental capacity, use the general power of attorney form. For a power of attorney that ceases where you lose your mental capacity, use Lawpath's General Power of Attorney (SA).

It is strongly advised that any customisation of this form should be restricted to the fields in the questionnaire, as the legislation requires certain elements to be included.

The witness declaration must be completed. Before acting as your attorney, the attorney (including any substitute attorney) must sign their statement of acceptance.

It is IMPORTANT that you do not electronically sign this document. In South Australia, powers of attorney cannot be electronically witnessed or signed. It is important that you print out this document and sign it and get it witnessed by hand.

Important information

• A power of attorney is an important and powerful legal document. You should get legal advice before you sign it.

• It is important that you trust the person you are appointing as attorney to make financial decisions on your behalf. Your attorney must be over 18 years old and must not be bankrupt or insolvent. If your financial affairs are complicated, you should appoint an attorney who has the skills to deal with complex financial arrangements.

• This power of attorney is for use in South Australia only. If you need a power of attorney for interstate or overseas, you may need to make a power of attorney under their laws. The laws of some other States and Territories in Australia may give effect to this power of attorney. However, you should not assume this will be the case. You should confirm whether the laws of the State or Territory concerned will in fact recognise this power of attorney.

• Your attorney must keep the attorney’s own money and property separate from your money and property, unless you are joint owners, or operate joint bank accounts. Your attorney should keep reasonable accounts and records about your money and property. The cost of providing and maintaining these records by the attorney may be recoverable from you.

• If your attorney is signing certain documents that affect real estate, the power of attorney must be registered at Land Services SA. For more information and forms, see https://landservices.com.au/businesses-and-property-industry-professionals/land-transactions/forms-and-guidance-notes

• An attorney must always act in your best interest. If your attorney does not follow your directions or does not act in your best interest, you should consider revoking the power of attorney. You will only be able to do so while you retain your mental capacity. If you revoke the power of attorney you should notify the attorney, preferably in writing, that they are no longer your attorney. The attorney must stop acting immediately once they have knowledge of the revocation.

Notes for completion

Joint attorneys

If you appoint more than one attorney, you should indicate whether the attorneys are to act jointly or jointly and severally. Attorneys who are appointed jointly are only able to act and make decisions together.

Attorneys who are appointed jointly and severally (ie together or separately) are able to act and make decisions independently of each other. However, you can specify that a simple majority (if you appoint 3 or more attorneys) must agree before they can act.

Substitute attorneys

If you appoint a substitute attorney, the substitute attorney will only have authority to act as your attorney if the first appointed attorney dies, resigns or vacates their position.

You can specify for whom the substitute is to act (eg if you appoint A and B as attorneys and X and Y as substitutes, you can specify that X takes A’s place if A vacates office).

Further information

For information on powers of attorney, see https://www.sa.gov.au/topics/family-and-community/planning-ahead/power-of-attorney-and-advance-directives

The NSW Government’s Planning Ahead Tools website www.planningaheadtools.com.au provides up-to-date information and resources about powers of attorney, enduring guardianship, wills and advanced care planning.