Power of Attorney

What is a Power of Attorney?

A Power of Attorney is a document which authorises another person to deal with many of your legal and financial affairs. A Power of Attorney can be just as important as your Will. Your Power of Attorney operates while you are alive but ceases on your death, when your Will takes over. A Power of Attorney is a document signed by you giving another person authority to act as your agent when you need someone to look after your affairs.

Types of Powers of Attorney

There are basically two types of Powers of Attorney.

 1. General Power of Attorney
This allows someone to handle your affairs for you when you are still mentally and physically capable, but for some reason do not desire to do so. For instances, if you go overseas. A general Power of Attorney will cease if you become mentally incapacitated.

 2. Enduring Power of Attorney
This document enables someone to act on your behalf, regardless of whether or not you become mentally incapacitated after the Power of Attorney is granted.

As a safeguard you can build restrictions into your Power of Attorney. For instances you might place a restriction in it that your attorney may not sell or dispose of your real estate. You might also place a restriction requiring that a medical certificate be obtained, certifying your incapacity, before an Enduring Power of Attorney can be used. The responsibility you give to someone to handle your affairs is a significant one and you should only give your Power of Attorney to somebody you trust. Although a Power of Attorney does not grant the donee power to act against your wishes there is a danger of the power being used against your interest.

It is important that you completely understand the meaning and implications of a Power of Attorney before you sign it. If you are unsure about the person you wish to appoint as your attorney or you do not think they would be capable of handling all of your affairs, you may wish to appoint more than one attorney and stipulate that they act jointly, that is they both must sign any documents. A person appointed under an Enduring Power of Attorney has particular responsibilities. He or she must act at all times with reasonable diligence and keep accurate records of all transactions. If you become mentally incapacitated you cannot revoke the Power of Attorney and the person appointed can only renounce the Power with the permission of the Supreme Court.

What happens if you don’t have a Power of Attorney?

If you don’t have an Enduring Power of Attorney and become mentally incapable of handling your own affairs there are two options:

1. Firstly, the South Australian Civil and Administrative Tribunal can appoint an administrator. The administrator may be a suitable relative or friend or Public Trustee. If Public Trustee is appointed a commission is charged to act as your administrator.

2. Secondly, the Supreme Court can appoint a Manager of your affairs pursuant to the Aged and Infirm Persons Property Act. The Court can appoint a suitable relative or friend or Public Trustee.

Making a Power of Attorney while you are of sound mind will avoid the expense and complications of the above procedures. A solicitor can advise you in relation to the granting of a Power of Attorney, help you to draft the appropriate documentation and make sure that it represents your interests. There are also Advance Care Directive Forms which relate to medical welfare and lifestyle matters as distinct from financial matters. These are not dealt with in this brochure.

How do you get a Power of Attorney?

If you would like a Power of Attorney prepared for you or would like to discuss your particular concerns with a lawyer telephone the Law Society for a referral to lawyers practising in this area.

Find a lawyer

You can find one by calling the Law Society of South Australia on (08) 8229 0200 or access the Law Society’s Referral Service