Enduring Power of Attorney - SA

What is an Enduring Power of Attorney?

An Enduring Power of Attorney allows you (''the Donor'') to give someone else (called the ''Donee'') the authority to deal with your finances on your behalf. They can ''stand in your shoes'' to make financial decisions for you. A Donee has an onerous fiduciary duty to always act in the Donor''s best interest.

It is called an ''Enduring'' Power of Attorney because it operates (*or* continues to operate) even if you become of unsound mind.

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Name
• This is an ENDURING Power of Attorney
• Who can give a Power of Attorney?
• Are you of sound mind?
• What is in a Name? Alias name? Another name?
• Put in your usual address
• Who can witness your signature?
• Can I revoke the Power of Attorney?
• Using your Power of Attorney for Land Transactions
• Do I need a SA POA or something else?
• Do I have to lodge this POA anywhere?
• Do enduring Power of Attorneys work after you are dead?
• Is this a Medical Power of Attorney as well?
How Many Attorneys
• Who should you appoint as your Attorney?
• One or two Attorneys?
• Attorneys acting Together or Independently?
Single Attorney
• Who should you nominate as your Attorney?
• Name of your Attorney
• Your Attorney's address
• Your Attorney's Duties
• Your Attorney's Powers
• Your Attorney's acceptance
• Can your Attorney Renounce the Power of Attorney?
Two Attorneys
• Who should you nominate as your Attorney?
• Name of your Attorney
• Your Attorney's address
• One or two Attorneys?
• Your Attorney's Duties
• Your Attorney's Powers
• Your Attorney's acceptance
• Can your Attorney Renounce the Power of Attorney?
• Attorneys acting Together or Independently?
When Takes Effect
• Immediately or When of Unsound Mind?
• Immediately
• Only When I am of Unsound Mind
Conditions, limitations, or exclusions
• Limiting your Power of Attorney

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Name

• This is an ENDURING Power of Attorney

  This is an enduring Power of Attorney.
  
  This means that if you become of unsound mind (that is, if you have a stroke or have an accident and as a result you cannot make reasoned decisions for yourself), your Power of Attorney is not revoked and remains in operation.
  
  Your Attorney will still be able to use the Power of Attorney to look after you and your financial and legal affairs after you lose the capability to do this for yourself.

  This hint is provided by Law Central Legal.

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• Who can give a Power of Attorney?

  You can give a Power of Attorney if you are:
  

  • at least 18 years old; and
  
  
  • of sound mind.
  To be a valid grant you must have the requisite mental capacity. If you want to give a Power of Attorney to someone, and you or your proposed attorney have any concerns that your mental capacity might be challenged by anyone, you should consider getting a written medical opinion to confirm your capacity to grant the power of attorney.

  This hint is provided by Law Central Legal.

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• Are you of sound mind?

  This is an important question because you can only give a Power of Attorney to someone if you are of sound mind.
  
  If you have had a stroke, suffer a medical condition or are just getting old, then someone may claim that you were not of sound mind when you signed your Power of Attorney.
  
  You do not want that.
  
  To be a valid grant you must have the requisite mental capacity. If you want to give a Power of Attorney to someone, and you or your proposed attorney have any concerns that your mental capacity might be challenged by anyone, you should consider getting a written medical opinion to confirm your capacity to grant the power of attorney.
  
  Keep that medical opinion in a safe place. Also let your Attorneys know of the medical opinion. That protects them as well.

  This hint is provided by Law Central Legal.

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• What is in a Name? Alias name? Another name?

  Please give your full name, for example Mary Jane Smith.
  
  Some people have assets in other names. For example, you may have assets in both your maiden name (before you were married) and your married name.
  
  If you have another name, an alias name or still have assets in a maiden name do as follows:
  
  After completing your current surname in the "Surname" field then write: (also known as Ryan James Malone). For example:
  
  
  Surname: Smith (also known as Muriel May Davies).
  
  

  This hint is provided by Law Central Legal.

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• Put in your usual address

  Where do you live? You must state your current residential address, for example 42 Narrow Lane, Valley View, South Australia 5093 Australia.
  
  DO NOT put down a Post Office Box address - government departments generally do not like this practice.
  
  If you are always travelling or do not have a permanent address, then put down the address that you stay at or visit the most, for example your mum's address.
  

  This hint is provided by Law Central Legal.

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• Who can witness your signature?

  After you've prepared your document, you must sign the Power of Attorney in the presence of ONE authorised witness.
  
  That witness must be a person authorised by law to take affidavits.
  
  A person authorised by law to take affidavits can be a Judge, a Justice of the Peace, a Solicitor, a proclaimed postmaster, a proclaimed bank manager or a proclaimed member of the police force.
  
  It is best to check whether that person is authorised by law to take affidavits.

  This hint is provided by Law Central Legal.

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• Can I revoke the Power of Attorney?

  If you are of sound mind, then you can revoke the Power of Attorney at any time.
  
  If you do not want your Power of Attorney to operate anymore, you should inform your Attorney and other relevant people and agencies in writing.
  
  Keep a copy of your written revocation together with a list of all people and agencies to whom you have sent it.
  
  If you have lodged your Power of Attorney with the Lands Titles Office, you will need to lodge a formal revocation with that Office.

  This hint is provided by Law Central Legal.

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• Using your Power of Attorney for Land Transactions

  You do not have to register your Power of Attorney. Once it is completed and signed, it is a legal document and can be used.
  
  However, before your Attorney(s) can register a dealing with your house or land (for example, buy or sell land on your behalf), the Power of Attorney must be deposited at the Lands Titles Office for registration. There is a fee payable for the registration.
  
  If you need to use the Power of Attorney for land transactions, then you need to lodge two copies of the Power of Attorney with original signatures at the Lands Titles Office.
  

  This hint is provided by Law Central Legal.

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• Do I need a SA POA or something else?

  You and your family live in New York. You have never been to Australia. Your uncle who lives in South Africa has property in SA, Australia.
  
  He is getting sick. He asks you to accept an Enduring Power of Attorney to attend to matters for the SA real estate.
  
  Which Power of Attorney does he use? New York State? South Africa? South Australia, Australia?
  
  Because the real estate or asset is in South Australia, you are best to use a South Australian Power of Attorney.
  
  A SA Power of Attorney works over South Australian assets.
  

  This hint is provided by Law Central Legal.

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• Do I have to lodge this POA anywhere?

  No you don't. Once correctly signed it is fully enforceable in this jurisdiction.
  
  Of course if you want to use the Power of Attorney at the bank or government agency then they may require you to "lodge" it or "register" it with them first.
  
  For banks you walk in with the original Power of Attorney and ask them to take a copy of it. (They try and keep your original. Don’t let them. They only need to cite (see) the original and take a copy).
  
  For the Land Titles Office it requires you to pay a fee to lodge the Power of Attorney with it. Most people won't lodge the Power of Attorney until they actually need it.
  
  DO I NEED TO HAVE IT 'STAMPED'?
  Good news here. The document is a 'deed' however it does not need to be stamped.

  This hint is provided by Law Central Legal.

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• Do enduring Power of Attorneys work after you are dead?

  1. If ‘you’ give someone a POA and you die the POA is null and void. It is of no effect. You the donor are dead.
  2. If ‘you’ receive a POA and you are the single attorney and you die then the POA is null and void.
  3. If ‘you’ receive a POA and you are a joint attorney and you die then the POA is null and void.
  4. If ‘you’ receive a POA and you are a joint and several attorney and you die then yes the POA continues on, with the last remaining attorney doing the work by himself.

  This hint is provided by Law Central Legal.

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• Is this a Medical Power of Attorney as well?

  This document does not create a medical Power of Attorney. It is only a financial Power of Attorney.
  
  If you want a Medical Power of Attorney then you should do a specific one for your state (if your state allows it).

  This hint is provided by Law Central Legal.

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How Many Attorneys

• Who should you appoint as your Attorney?

  The choice of Attorney is up to you. You can choose:
  

  • a spouse;
  
  
  • a partner;
  
  
  • a family member; and/or
  
  
  • a friend.
  
  Your Attorney of choice must be willing to take on responsibility on your behalf.
  
  Ask yourself:
  
  • Do you trust the person to manage your property and financial affairs?
  
  
  • Will they act in your best interests at all times?
  
  
  • Are they competent to deal with management decisions?
  
  
  • Are they capable of keeping accurate records of dealings and transactions?
  
  

  This hint is provided by Law Central Legal.

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• One or two Attorneys?

  Generally, you can appoint one or more Attorneys. However, on Law Central, you cannot appoint more than two Attorneys.
  
  You may want to appoint two Attorneys if:
  

  • you have 2 children and you want to appoint both of them;
  
  
  • you know and trust 2 people and they are both happy to act as Attorneys;
  
  
  • you don't trust one person to do the job on their own;
  
  
  • the job would be too hard for one person to handle;
  
  
  • one of your Attorneys is not very business-minded (but compassionate) and needs the help of a second more business-minded person; and/or
  
  
  • one of the Attorneys lives overseas or travels a lot.

  This hint is provided by Law Central Legal.

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• Attorneys acting Together or Independently?

  If you decide to appoint two people as your Attorneys, you have two options:
  
  1. Your Attorneys act together (joint Attorneys). Such "joint" Attorneys must act together on your behalf at all times. They must agree on what they are doing and sign off together.
  
  If they fight and can't agree then nothing happens. Something happens only when both of them agree. If they disagree then they can always go and seek direction from the Supreme Court.
  
  It may be safer to make your Attorneys act jointly, especially if you do not trust the judgement of one of them.
  
  
  2. Your Attorneys act independently (joint and several Attorneys). If you appoint your two Attorneys to act "independently", then they can do things on your behalf separately rather than together.
  
  You may want to consider this option if:
  

  • the Attorneys live overseas;
  
  
  • one of the Attorneys lives overseas;
  
  
  • the Attorneys will always agree with each other;
  
  
  • you completely trust the judgement of both Attorneys; and/or
  
  
  • you don't expect the Attorneys to ever disagree.
  
  

  This hint is provided by Law Central Legal.

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Single Attorney

• Who should you nominate as your Attorney?

  The choice of Attorney is up to you. Your Attorney must be over 18 years of age. It should be someone you trust.
  
  You can choose:
  

  • a spouse;
  
  
  • a partner;
  
  
  • a family member; or
  
  
  • a friend.
  
  
  
  Your Attorney of choice must be willing to accept responsibility on your behalf.
  
  Ask yourself:
  
  • Do you trust the person to manage your property and financial affairs?
  
  
  • Will they act in your best interests at all times?
  
  
  • Are they competent in dealing with management decisions?
  
  
  • Are they capable of keeping accurate records of dealings and transactions?
  
  

  This hint is provided by Law Central Legal.

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• Name of your Attorney

  State the full name of the person you want to appoint as your Attorney, for example Michael John Smith.

  This hint is provided by Law Central Legal.

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• Your Attorney's address

  State your Attorney's current residential address, for example:
  
  Unit 5, 31 Green Street, Elizabeth Vale SA 5112 Australia.
  
  You may appoint someone who lives in South Australia, in another Australian state or even in another country as your Attorney.

  This hint is provided by Law Central Legal.

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• Your Attorney's Duties

  Your Attorney is legally obliged to act in your best interests. Your Attorney is accountable for his/her actions.
  
  Your Attorney must:
  

  • exercise their powers with reasonable diligence to protect your interests;
  
  
  • keep accurate records and accounts of all dealing and transactions they make on your behalf; and
  
  
  • not renounce the power while you are of unsound mind, except with the permission of the Supreme Court.
  
  If your Attorney no longer wants or is able to act on your behalf, they must let you know in writing.

  This hint is provided by Law Central Legal.

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• Your Attorney's Powers

  Your Attorney has power to make decisions regarding your property and financial matters.
  
  When your Attorney exercises authority on your behalf, your Attorney should sign as follows:
  
  (Attorney's name) as Attorney for (your name).
  
  Eg Helen Smith as Attorney for James Bond.
  
  Your Attorney cannot:
  

  • make lifestyle and medical decisions for you;
  
  
  • do anything that requires you personal skill or discretion;
  
  
  • deal with property that you hold on trust;
  
  
  • act as a director or secretary of a company on your behalf (unless authorised by constitution of the company);
  
  
  • make a Will;
  
  
  • vote in any government elections; or
  
  
  • appoint a substitute or additional Attorney.
  
  

  This hint is provided by Law Central Legal.

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• Your Attorney's acceptance

  Your Attorney must indicate their willingness to accept the power under the Power of Attorney and the obligations that go with it.
  
  To do so, your Attorney must sign in the space provided on the Acceptance page after you signed the Power of Attorney.
  
  Your Attorney's signature must be dated, but not witnessed.

  This hint is provided by Law Central Legal.

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• Can your Attorney Renounce the Power of Attorney?

  If you are of sound mind, and your Attorney no longer is able or willing to act as your Attorney, they need to let you know in writing.
  
  If you are of unsound mind, then your Attorney must apply to the Supreme Court for permission to renounce your Power of Attorney.

  This hint is provided by Law Central Legal.

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Two Attorneys

• Who should you nominate as your Attorney?

  The choice of Attorney is up to you. You can choose:
  

  • a spouse;
  
  
  • a partner;
  
  
  • a family member; and/or
  
  
  • a friend.
  
  
  
  Your Attorney of choice must be willing to accept responsibility on your behalf.
  
  Ask yourself:
  
  • Do you trust the person to manage your property and financial affairs?
  
  
  • Will they act in your best interests at all times?
  
  
  • Are they competent in dealing with management decisions?
  
  
  • Are they capable of keeping accurate records of dealings and transactions?
  
  

  This hint is provided by Law Central Legal.

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• Name of your Attorney

  State the full name of the person you want to appoint as your Attorney, for example Michael John Smith.

  This hint is provided by Law Central Legal.

  ---

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• Your Attorney's address

  State your Attorney's current residential address, for example:
  
  Unit 5, 31 Green Street, Elizabeth Vale SA 5112 Australia.
  
  You may appoint someone who lives in South Australia, in another Australian state or even in another country as your Attorney.
  

  This hint is provided by Law Central Legal.

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• One or two Attorneys?

  You can appoint one or more Attorneys. On Law Central, you cannot appoint more than two Attorneys.
  
  You may want to appoint two Attorneys if:
  

  • you have two children and you want to appoint both of them;
  
  
  • you know and trust two people and they are both happy to act as Attorneys;
  
  
  • you don't trust one person to do the job on their own;
  
  
  • the job would be too hard for one person to handle;
  
  
  • one of your Attorneys is not very business-minded (but compassionate) and needs the help of a second more business-minded person; and/or
  
  
  • one of the Attorneys lives overseas or travels a lot.

  This hint is provided by Law Central Legal.

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• Your Attorney's Duties

  Your Attorney is legally obliged to act in your best interests at all times. Your Attorney is accountable for their actions.
  
  Your Attorney must:
  

  • exercise their powers with reasonable diligence to protect your interests;
  
  
  • keep accurate records and accounts of all dealing and transactions they make on your behalf; and
  
  
  • not renounce the power while you are of unsound mind.
  
  If your Attorney no longer wants or is able to act on your behalf, they must let you know in writing. If you are still of sound mind they can renounce. If you aren’t of sound mind then they will need to seek direction from the Supreme Court.

  This hint is provided by Law Central Legal.

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• Your Attorney's Powers

  Your Attorney has power to make decisions regarding your property and financial matters.
  
  When your Attorney exercises authority on your behalf, your Attorney should sign as follows:
  
  (Attorney's name) as Attorney for (your name).
  
  Eg Helen Smith as Attorney for James Bond.
  
  Your Attorney cannot:
  

  • make lifestyle and medical decisions for you;
  
  
  • do anything that requires you personal skill or discretion;
  
  
  • deal with property that you hold on trust;
  
  
  • act as a director or secretary of a company on your behalf (unless authorised by constitution of the company);
  
  
  • make a Will;
  
  
  • vote in any government elections; or
  
  
  • appoint a substitute or additional Attorney.
  
  

  This hint is provided by Law Central Legal.

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• Your Attorney's acceptance

  Your Attorney must indicate their willingness to accept the power under the Power of Attorney and the obligations that go with it.
  
  To do so, your Attorney must sign in the space provided on the Acceptance page after you signed the Power of Attorney.
  
  Your Attorney's signature must be dated, but not witnessed.

  This hint is provided by Law Central Legal.

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• Can your Attorney Renounce the Power of Attorney?

  If you are of sound mind, and your Attorney no longer is able or willing to act as your Attorney, they need to let you know in writing.
  
  If you are of unsound mind, then your Attorney must apply to the Supreme Court for permission to renounce your Power of Attorney.

  This hint is provided by Law Central Legal.

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• Attorneys acting Together or Independently?

  If you decide to appoint two people as your Attorneys, you have two options:
  
  1. Your Attorneys act together (joint Attorneys). Such "joint" Attorneys must act together on your behalf at all times. They must agree on what they are doing and sign off together.
  
  If they fight and can't agree then nothing happens. Something happens only when both of them agree. If they disagree then they can always go and seek direction from the Supreme Court.
  
  It may be safer to make your Attorneys act jointly, especially if you do not trust the judgement of one of them.
  
  
  2. Your Attorneys act independently (joint and several Attorneys). If you appoint your two Attorneys to act "independently", then they can do things on your behalf separately rather than together.
  
  You may want to consider this option if:
  

  • the Attorneys live overseas;
  
  
  • one of the Attorneys lives overseas;
  
  
  • the Attorneys will always agree with each other;
  
  
  • you completely trust the judgement of both Attorneys; and/or
  
  
  • you don't expect the Attorneys to ever disagree.
  
  

  This hint is provided by Law Central Legal.

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When Takes Effect

• Immediately or When of Unsound Mind?

  In South Australia, you can have your Enduring Power of Attorney operate immediately after you sign it. This is called an "immediate" Enduring Power of Attorney.
  
  Alternatively, you can opt for an Enduring Power of Attorney to come into effect only when you no longer have mental capacity (for example, if you have dementia or are in a coma).
  
  People often do two separate Powers of Attorney. One to their spouse - this usually comes into effect immediately. They then do a second Power of Attorney to up to two of their children - but this only comes into effect if they are of unsound mind.
  
  Confused? It is a personal choice. There is no right or wrong answer. If in doubt, talk to your loved ones.

  This hint is provided by Law Central Legal.

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• Immediately

  If you choose the option "Immediately", then your Attorney assumes the power immediately once your Attorney signs to accept it.
  
  The Power of Attorney continues in operation in the event that you lose your decision-making capacity. While you retain your decision-making capacity, your Attorney must act in accordance with your directions.

  This hint is provided by Law Central Legal.

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• Only When I am of Unsound Mind

  If you choose the option "Only When I am of Unsound Mind", your Attorney assumes the power only if and when you lose capacity to make reasoned decisions for yourself.
  
  

  This hint is provided by Law Central Legal.

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Conditions, limitations, or exclusions

• Limiting your Power of Attorney

  You are able to limit the operation of your Enduring Power of Attorney. For example, you may say that your Attorney cannot use the Power of Attorney to sell your property located at 31 Bilk Avenue, West Beach, South Australia.
  
  If you want to limit the operation of your Enduring Power of Attorney, it is best to get legal advice.

  This hint is provided by Law Central Legal.

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This document has been prepared by the law practice Law Central Legal

Liability limited by a scheme approved under Professional Standards Legislation