Planning for incapacity lets you choose who can act and how decisions should be made. These answers explain the key South Australian documents and safeguards.
What is a Power of Attorney and how does it relate to my Will?
A Power of Attorney authorises someone to manage your financial and legal affairs during your lifetime. It is distinct from your Will, cannot be used to make or change your Will, and ceases automatically upon death. To create one, a person with capacity appoints one or more trusted attorneys in a correctly witnessed General or Enduring Power of Attorney.
What is an Advance Care Directive and how does it interact with guardianship?
An Advance Care Directive is a legally recognised South Australian document that records wishes about future health care, accommodation and personal matters, and can appoint substitute decision-makers if capacity is lost. Where a valid and adequate directive exists, SACAT will generally not need to make a guardianship order covering the same matters.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document appointing an attorney to manage a person's financial and legal affairs, which continues to operate even if that person later loses capacity — unlike an ordinary Power of Attorney.
What is an Enduring Power of Guardianship?
An Enduring Power of Guardianship allows a person to appoint an enduring guardian in advance to make personal, health and lifestyle decisions on their behalf if they later lose capacity, complementing the financial authority given under an Enduring Power of Attorney. Enduring Powers of Guardianship were available in South Australia until 31 July 2014, but were superseded and replaced by Advance Care Directives from that date. However older documents may still be legally valid, and similar documents created in other jurisdictions may be valid.
Why should I set up an Enduring Power of Attorney before I lose capacity?
Without a valid Enduring Power of Attorney in place, family members may need to apply to SACAT for an administration order if you lose capacity, which can be slower, more costly, and places the choice of administrator in the Tribunal's hands rather than your own.
What happens if I lose capacity without any planning documents in place?
Loved ones would typically need to apply to SACAT for both a guardianship order and an administration order, since neither role is automatically conferred, and the Tribunal — not the family — decides who is appointed and on what terms.
Does having an Enduring Power of Attorney avoid the need for SACAT involvement altogether?
In many cases yes, provided the document is valid and covers the relevant decisions. However, an interested person can still apply to SACAT or the Supreme Court for advice, direction, variation or revocation of an Enduring Power of Attorney if concerns arise.
Does power of attorney cease at death?
Yes, immediately. A Power of Attorney's authority ends the instant the principal dies, regardless of its terms. From that moment, the deceased's affairs are governed by their executor or administrator under the Succession Act 2023 (SA), not the former attorney.
Who can witness a Power of Attorney in South Australia?
Under section 6(2) of the Powers of Attorney and Agency Act 1984 (SA), only one attesting witness is required, and that witness must be a person authorised by law to take affidavits — a Justice of the Peace, commissioner for affidavits, notary public, or legal practitioner.
How do I get a Power of Attorney?
The person creating the document, called the principal or donor, must have capacity. They execute a General or Enduring Power of Attorney appointing one or more trusted attorneys, correctly witnessed under South Australian law. Registration with Land Services SA is only required if the document will be used to deal with real property. Specialist advice is strongly recommended because there are several traps for families.