Enduring Powers of Attorney and Advance Care Directives in South Australia: What Each Document Does and Why You Need Both

An enduring power of attorney lets someone you trust manage your money and property if you lose capacity. An advance care directive records your health, accommodation and personal wishes and names substitute decision-makers. A will only works after death, so South Australians need all three documents.

Ask most people whether their affairs are in order and they will say yes, because they have a will. We understand why. A will is the document everyone talks about. But it only speaks once you have died, and many families face their hardest decisions long before that.

This guide explains the two documents that protect you while you are alive but cannot decide for yourself: the enduring power of attorney for money and property, and the advance care directive for health, accommodation and personal matters. We cover how each works in South Australia, what happens to older documents, what happens if you have nothing in place, and the mistakes we see most often. This is general information, not legal advice for your circumstances.

Key Takeaways

• A will operates only after death. It does nothing if you are alive but unable to make decisions.
• An enduring power of attorney under the Powers of Attorney and Agency Act 1984 (SA) covers financial and property matters. It does not cover health decisions.
• An advance care directive under the Advance Care Directives Act 2013 (SA) covers health, accommodation and personal matters, and appoints your substitute decision-makers.
• Properly made older documents, such as a medical power of attorney or enduring power of guardianship, generally remain valid after the 1 July 2014 changes, but they deserve a review.
• Without these documents, family may need to apply to the South Australian Civil and Administrative Tribunal (SACAT), which means delay, expense and stress.
• The documents work best when they are prepared together, with the right people named and the originals easy to find.

Summary Table

	Will	Enduring power of attorney	Advance care directive
Governing law	Succession Act 2023 (SA)	Powers of Attorney and Agency Act	Advance Care Directives Act
Covers	Distribution of your estate	Financial and property decisions	Health, accommodation and personal decisions
Operates	After death	When signed, or from a date or event you choose	Only when you cannot make a particular decision
Decision-maker	Executor	Attorney	Substitute decision-maker
Main risk if missing	Intestacy rules decide who inherits	Tribunal-appointed administrator, bank and property delays	Tribunal-appointed guardian, family disagreement over care
Key safeguard	Clear, current wording	Clear limits and a careful choice of attorney	Specific wishes and binding refusals

Why a Will Is Not Enough

A will only takes effect on death, so it cannot help if you are alive but unable to make decisions after a stroke, accident or dementia diagnosis. In that gap, nobody has automatic authority over your bank accounts, home or medical care. Enduring documents fill that gap before a will is ever needed.

Think of your life in three stages: you have capacity, you lose capacity, and you die. A will covers only the last stage. The enduring power of attorney and the advance care directive cover the middle one.

Consider what a will cannot do. It cannot pay an aged care deposit while you are in hospital. It cannot authorise anyone to speak to your bank. It cannot tell a doctor which treatments you would refuse. Your executor has no authority at all until you die.

Marriage does not close the gap on its own. Being a spouse or adult child does not automatically give someone power over assets held in your sole name. Even with jointly owned property, selling or refinancing generally needs both owners to sign, which is a real problem when one owner lacks capacity.

Loss of capacity is also not only an old-age issue. It can follow a stroke, a car accident, a brain injury or an early diagnosis. That is why these documents suit parents, people with a new diagnosis and adults helping ageing parents alike. Our estate planning lawyers prepare all three documents together because they are parts of one plan. If you are still weighing up the process, our guides to estate planning costs and process, and to updating or revoking a will, cover the wider picture.

Enduring Power of Attorney in South Australia: What It Does

An enduring power of attorney is a legal document under the Powers of Attorney and Agency Act 1984 (SA). It lets you appoint a trusted person, your attorney, to make financial and property decisions for you, and it keeps working if you lose mental capacity. It does not cover health or lifestyle decisions.

The word 'enduring' is what matters. An ordinary power of attorney stops when you lose capacity, which is exactly when you need it. An enduring one continues. Our page on power of attorney explains how we prepare these documents.

What an attorney can and cannot do

Within the limits you set, an attorney can usually pay your bills, operate your bank accounts, manage investments, collect rent, sell or lease property and pay for your care. They cannot make or change your will. They cannot make health decisions, which belong to your substitute decision-makers under an advance care directive. Their authority also ends when you die, and your executor then takes over.

You can restrict the power. For example, you might exclude the sale of the family home, or require two attorneys to agree to large transactions. Clear limits protect you, and they protect the attorney from later accusations.

Joint or several appointments

You can appoint one attorney or more than one. If you appoint several, the document should say whether they act jointly (all must agree and sign), severally (each can act alone), or jointly and severally.

Joint appointments add a check against misuse. They can also stall if one attorney is overseas, unwell or in conflict with the other. Several appointments are faster, but each attorney holds full power on their own. Neither is right for everyone. We ask about family dynamics, the assets involved and how well the attorneys work together before recommending one. The document should also deal with what happens if an attorney dies, loses capacity or declines to act.

When it takes effect

Unless you say otherwise, an enduring power of attorney takes effect once it is signed and witnessed. That surprises people. It means the attorney could act while you still have capacity, although you remain in charge and can revoke the document while you have capacity.

You can instead start it on a future date or event, such as a doctor confirming loss of capacity. The trade-off is that someone must prove the event has happened, which can cause delay when speed matters. The right choice depends on how much you trust your attorney and how complex your affairs are.

Signing and witnessing requirements

The document must be in the form the Act requires, signed by you and witnessed by an authorised witness, such as a lawyer or justice of the peace. The attorney also signs to accept the appointment. A document that misses a formality can be refused by a bank or land titles office, and families often discover the problem at the worst moment. If the document will be used to deal with land, it may need to be lodged or registered first. We check these details at signing.

The duty to act in your interests

An attorney holds a position of trust. They must act honestly, with reasonable care and diligence, and in your interests. They should keep your money separate from their own, keep records, and generally not benefit themselves unless the document or the law allows it.

Gifts and loans to the attorney are the most common flashpoint in family disputes. If relatives are worried about how an attorney is acting, SACAT can review the attorney's conduct and give directions. Choosing the right person is the best protection of all.

Advance Care Directives in South Australia: What They Do

An advance care directive is a legal document under the Advance Care Directives Act 2013 (SA). It lets you record your values and wishes about health care, accommodation and personal matters, and appoint one or more substitute decision-makers. It only applies when you cannot make a particular decision yourself.

While you can decide, your current choice always wins. The directive is a safety net, not a hand-over of control. Our advance care planning service helps you think through what to include.

Appointing substitute decision-makers

A substitute decision-maker in South Australia is the person you choose to make health, accommodation and personal decisions when you cannot. You can name more than one, set an order of priority and place limits on their role. They sign to accept the appointment.

These are the people doctors, hospitals and aged care providers will turn to. Pick people who can stay calm, ask doctors good questions and carry out your wishes, not their own.

Recording your values and wishes

The directive lets you say what matters most to you. That might be staying at home, being free of pain, honouring your faith or having family nearby. Specific statements help far more than general ones. 'I want to stay in my own home for as long as it is safe' gives your decision-makers something to work with. 'I want quality of life' does not.

Binding refusals of treatment

You can refuse particular treatment in clear terms, for example certain life-sustaining measures in stated circumstances. Where a refusal in a valid directive clearly applies, health practitioners must give effect to it. Vague instructions are harder to apply and more likely to be disputed.

We suggest talking to your GP first about the medical detail, then bringing that to us so the wording is clear and legally sound.

How doctors use the directive

When you cannot decide, the treating team looks for a directive. They follow any binding instructions that apply, then turn to your substitute decision-makers for decisions the directive does not cover. Your recorded wishes guide those decisions.

A directive nobody can find guides nobody. Give copies to your GP and substitute decision-makers, tell your aged care provider if relevant, and consider uploading it to My Health Record.

Do Old Documents Still Count? Medical Power of Attorney SA and the 1 July 2014 Changes

Generally, yes. The Advance Care Directives Act 2013 (SA) commenced on 1 July 2014 and replaced the enduring power of guardianship, medical power of attorney and anticipatory direction. Properly made earlier documents generally remain valid, but a review is wise because they may no longer reflect your wishes or relationships.

Before that date, South Australians used separate documents for related purposes. An enduring power of guardianship dealt with accommodation and personal matters. A medical power of attorney appointed someone for health decisions. An anticipatory direction recorded treatment refusals. The new Act replaced all three with a single advance care directive, and the old forms can no longer be made.

The enduring power of attorney for financial matters was not replaced. It continues under the Powers of Attorney and Agency Act 1984 (SA). People still say 'medical power of attorney SA' out of habit. Today, the equivalent step is appointing a substitute decision-maker in an advance care directive.

We recommend a review of any older document for three reasons:

• The people you appointed may have died, moved away, fallen out with family or become unwell themselves.
• The old documents were split across several forms, so they may not cover the full range of wishes a modern directive can record.
• An older document sitting beside a newer one can leave doctors and family unsure which applies.

Making a new directive can affect earlier documents, so we confirm exactly what is replaced before you sign.

What Happens If You Have Neither Document?

If you lose capacity without an enduring power of attorney or advance care directive, a family member or another person may need to apply to the South Australian Civil and Administrative Tribunal (SACAT) for a guardianship or administration order. That means delay, expense and stress at the worst possible time.

SACAT can appoint a guardian for health, accommodation and personal decisions, and an administrator for financial decisions. It generally needs evidence of incapacity, usually from a doctor, and it hears from family and others affected. It then decides who is suitable. That might be a relative. If the family disagrees or nobody suitable is available, it may be the Public Advocate as guardian or the Public Trustee as administrator. Orders are not necessarily permanent and can be reviewed.

Here is an illustrative scenario. It is hypothetical and not a real matter, but it reflects problems families face.

Imagine a woman in her seventies who has a stroke. She has a will, but no enduring power of attorney and no advance care directive. Most of her savings are in her sole name, so her husband, who has early memory loss himself, cannot access them. Her two adult children live in different cities and disagree. One wants her to return home with support, the other wants residential aged care. The hospital needs a discharge decision, and the aged care provider wants a deposit.

Nobody has legal authority to decide any of it. The children apply to SACAT. While they wait for the hearing, bills pile up and the hospital presses for answers. The tribunal eventually appoints a guardian and an administrator. Because the children cannot agree, it chooses public officers instead of family.

A few documents signed years earlier would have named her choices and recorded where she wanted to live. They would have spared the family the tribunal, the delay and the conflict. Even when the outcome is reasonable, an order made by strangers is rarely what the person would have chosen.

How to Choose the Right People and Avoid Common Mistakes

Choose people who are honest, organised, available and willing to follow your wishes even when family disagree. Then avoid the usual errors: generic online forms, unclear limits, no back-up plan and failing to tell anyone where the documents are kept.

Choosing your attorney and substitute decision-makers

Look for qualities, not birth order. Your eldest child is not automatically the best person to manage money or sit in a hospital meeting.

• Trustworthiness: they will put your interests first and keep proper records.
• Competence: for an attorney, comfort with money, paperwork and dealing with banks.
• Calm under pressure: for a substitute decision-maker, the ability to ask doctors questions and make hard calls.
• Availability: someone who lives close enough, or can travel, and who is willing to do the job.
• Willingness to follow your wishes: especially if siblings or other relatives push back.

Common mistakes we see

• Generic online forms. They cannot adapt to your family, assets or limits, and a witnessing error can make them useless when they are needed.
• Unclear limits. Vague wording about joint or several appointments, or about gifts, invites disputes.
• No back-up. If your only attorney dies or declines to act, you are back to the tribunal.
• Not telling anyone. Attorneys and substitute decision-makers need to know the documents exist, where the originals are, and what you want.
• Never reviewing. Divorce, death, a new diagnosis, a new relationship or a move interstate are all good reasons to check your documents.
• Not having the conversation. The paperwork is easier than the talk, but the talk is what makes it work.

Why We Treat These Documents as One Plan

The three documents do different jobs, but they fail together when drafted separately. Our view is that the real risk is not the legal wording. It is the people, the conversations and the paperwork nobody can find on the day it matters. We build the plan around those three practical points.

We use three simple tests with clients:

1. The money test. If your attorney had to step in tomorrow, would they know what you own, where it is and who to call? A short, current list of accounts, insurance and advisers does more for them than any clause.
2. The bedside test. Could your substitute decision-maker say 'no' to a doctor, or to a sibling, and still follow your wishes? If not, they may be the wrong person, however much you love them.
3. The ten-minute test. Could someone find your signed originals quickly? If the answer is a vague 'somewhere in the filing cabinet', the document is not doing its job.

We also take a position that surprises some people: your attorney and your substitute decision-maker do not have to be the same person. Money skills and bedside skills are different. Often the most organised child is the better attorney, and the most patient one is the better substitute decision-maker. By contrast, your attorney and executor are often sensibly the same person, because the handover at death is then smoother.

Prepare Your Will, Enduring Power of Attorney and Advance Care Directive Together

The simplest way to close the gap is to prepare all three documents together as one coordinated estate plan. Book a consultation with Steven M Clark, an estate planning lawyer in Adelaide, and we will prepare or review your will, enduring power of attorney and advance care directive in one process.

We approach this as people first and lawyers second. Steven Clark is actively involved in supervising operations and overseeing standards of work, so your documents are drafted and checked with care. Whether you are starting from scratch, helping a parent, or reviewing documents made before 1 July 2014, we will explain your options in clear terms and make sure the documents suit your family. Start with our estate planning lawyers page, or book a consultation directly.

References

• Government of South Australia, Advance Care Directives
• South Australian Civil and Administrative Tribunal (SACAT)
• Office of the Public Advocate (South Australia)
• Public Trustee South Australia
• SA Legislation, Powers of Attorney and Agency Act 1984 and Advance Care Directives Act 2013