All adults should have an Enduring Power of Attorney and an Advance Care Directive.

Your spouse and/or children do not automatically have the right to make financial and legal decisions on your behalf if you lose mental capacity, become incapacitated for any length of time or you are just having that well-earned overseas holiday and something unexpected happens. Let us help you get peace of mind knowing that should anything happen, everything is in place so that the people you know and trust are taking care of things. Please talk to one of our caring staff to ensure that you are well prepared for any eventuality.

Enduring Power Of Attorney

An Enduring Power of Attorney is a separate document to your Will and gives a person or persons you appoint the power to act on your behalf. They are called your “Attorney” and this is a different role to your “Executor” (see our Wills section on the role of your Executor).

When Should I Have An Enduring Power Of Attorney?
Having an Enduring Power of Attorney is like having an insurance policy “just in case” you are suddenly incapacitated through accident or illness. It is more important to have one the older you get as age related illnesses are more common ways of losing capacity than accidents. However they are relevant at all ages.
What Can My Attorney Do?
Your Attorney will be able to handle almost anything for you to do with business, property, money or other such financial matters while you are alive. Health and care issues should be dealt with by an Advance Care Directive as these decision cannot be made by your Attorney (see our Advance Care Directive section).
When Can It Be Used?
You will need to decide and nominate in the document when it can get used. For example, your Attorney can either commence acting anytime from the time you sign it or can only act once you have lost capacity (which is mental not physical) and needs to be ‘activated’ by a medical professional’s opinion to that effect.
How Many People Should I Appoint?
You have many options available depending on your wishes. If you have more than one Attorney nominated you can choose whether they act together each time (jointly) or to act together or separately (jointly and severally). You can nominate a substitute Attorney to act if your main first choice of person is unable to act. This is common with spouses. You should discuss your requirements at your initial appointment so the documents can be set up to best suit your needs.

You should not assume that your wife or husband or other family member can automatically act for you. This is not the case and it may cause your loved ones practical problems if you do not have the right documents in place before anything happens. Do not wait until you think you might need one as it could be too late.

Remember it is a powerful tool that you are giving to someone and you must have utmost faith and trust in the person you appoint to act in your best interests and not to follow their own agenda.

What happens if I do not have an Enduring Power of Attorney and I become incapacitated?
It would be necessary for an application to be made to SACAT (South Australian Civil and Administrative Tribunal) for them to appoint a person or Public Trustee to act on your behalf. The decision is theirs as to who is appointed, not yours and it may causes delay and trauma for your loved ones to have to deal with the bureaucracy at such a difficult time.

You can tailor your Enduring Power of Attorney to best suit your needs and circumstances both as to when it can get used or how many people are nominated and how they can act. We can discuss all options available to you at our first appointment.

We will give advice about both Enduring Powers of Attorney and Advance Care Directives whenever we take instructions for wills, and often it is more cost effective for all documents to be done as part of one of our packages that we offer. We also offer a home or hospital visit service (at a small additional charge or for no extra cost depending on distance) for those unable to get to one of our offices.

Advance Care Directives

An Advance Care Directive allows you to appoint one or more “Substitute Decision-Makers” who will have the power to make health and lifestyle type decisions on your behalf should you lose your mental capacity (as determined by a health professional). The Substitute Decision-Maker can only act on your behalf if you lose your mental capacity and not before so your wishes cannot be over ridden whilst you still have the ability to make your own decisions. This document is a separate document to your Will or Enduring Power of Attorney.

What About Enduring Powers Of Guardianship?
The Advance Care Directive Form replaced Enduring Powers of Guardianship, Anticipatory Directions and Medical Powers of Attorney when it was introduced in 2014. However, if you already have these previous documents in place, and they were signed by your prior to 1st July 2014 and fully and correctly signed by all other parties by 31st December 2015, the previous documents are still valid and effective and you do not have to do one of the new ones.
How Many Substitute Decisions Makes Can I Name?
You can name more than one person (the prescribed document allows up to a maximum of three) and indicate whether it is any one or all of the people named who can make decisions. You can arrange an alternate Substitute Decision-Maker if your first choice of person dies or cannot act through their own incapacity. You can nominate both binding and non-binding wishes if you have any about types of care or treatments that you would or would not want to have and matters for your Substitute Decision Maker to take into account when making a decision on your behalf.
What Types Of Decisions May Need To Be Made?
Your Substitute Decision-Maker may need to make decisions relating to some of the following:

  • approving care and management plans,
  • which doctor or dentist to use and what treatments should be carried out,
  • consent to entry into group home, hostel or nursing home,
  • authorise leisure activities, holidays, day programs and visitors,
  • whether to consent to treatments or medical procedures for you or whether to say ‘no’ to treatments or life support if they believe that would be your wish (or it is stated in the document what your wishes are).
What If I Do Not Have Anyone I Can Nominate To Make Decisions?
If you do not have anyone who you wish to appoint to make medical or lifestyle decisions on your behalf you can still prepare an Advance Care Directive. The Advance Care Directive allows you to put in writing your medical and lifestyle choices, without the need to specifically appoint someone to make decisions.

What happens if I do not have an Advance Care Directive and I become incapacitated?

An application would have to be made to SACAT (South Australian Civil and Administrative Tribunal) for them to appoint someone to make medical and lifestyle decisions for you. It may appoint a family member into this role but commonly makes decisions itself (via the Public Advocate) about such matters. The decision is in their hands not yours and it may be traumatic for your family or spouse to have to deal with this bureaucratic procedure in an emotionally difficult time for them.

You must have utmost faith and trust in the person you appoint and that they will act in your best interests and make the best possible decisions on your behalf in accordance with your wishes. Often you would appoint a spouse and/or family members to have the responsibility for making health and medical decisions.

We will give advice about both Enduring Powers of Attorney and Advance Care Directives whenever we take instructions for wills, and often it is more cost effective for all documents to be done as part of one of our packages that we offer. We also offer a home or hospital visit service (at a small additional charge or for no extra cost depending on distance) for those unable to get to one of our offices.

Key People for Powers of Attorney & Advance Care Directives