Enduring Power of Attorney – What You Should Know
An Enduring Power of Attorney is a legal document which enables you to appoint a person (your attorney) to make decisions on your behalf about your finances and assets if you’re not able to do so.
The power can be tailored to your needs, so that it will operate in the circumstances that you decide.
Your attorney must act with reasonable diligence to protect your interests or they may be liable to compensate you for any financial loss that occurs. Whoever you appoint to be your attorney needs to be someone you know well and trust.
Why you should appoint an Attorney?
All adults should have an Enduring Power of Attorney to ensure that, if you lose decision making capacity, your financial and legal affairs are handled by the person(s) of your choice.
If you lose mental capacity due to an accident, dementia or other illness and you have not appointed an attorney, SACAT (the South Australian Civil and Administrative Tribunal) has the power to make an appointment on your behalf. However, this process takes time and can be stressful for your loved ones, and SACAT may not appoint the people you would have chosen. Sometimes, Public Trustee may be appointed to manage your affairs.
Your attorney cannot make decisions about your medical treatment or daily care. Those decisions are made by a person appointed under an Advance Care Directive. You can choose to appoint the same person or a different person for both roles, but in South Australia, the appointments must be made under two separate documents.
How do you appoint an Attorney?
You must be over 18 years of age and sign a specific form in the presence of an authorised witness such as a Justice of the Peace or solicitor. All attorneys that you appoint must also sign the document. In South Australia, an attorney’s signature does not need to be witnessed.
The Enduring Power of Attorney document does not become effective unless it is signed and completed by all of your appointed attorneys.
The original document should be stored securely, such as in Andersons Solicitors’ safe custody. Make sure your attorneys are aware of the location of your original documents. You may wish to provide them with photocopies for their records.
You should ask your lawyer to draft your Enduring Power of Attorney documentation at the same time as you make a Will.
