Will, Enduring Power of Attorney and Advance Care Directive: The Estate Plan Every South Australian Adult Needs

Steven M Clark29 September 202614 min read

A complete South Australian estate plan has three documents, not one: a will, an enduring power of attorney and an advance care directive. The will only takes effect after death and only controls assets that legally form part of your estate. The enduring power of attorney lets someone you choose manage your money and property, including while you are alive but unable to act yourself. The advance care directive covers your health care, accommodation and personal decisions, and lets you appoint someone to make those decisions if you cannot. Without the second and third document, a spouse or adult child has no automatic authority to step in, no matter how close the relationship.

Estate plan at a glance: Will = assets after death | Enduring power of attorney = money and property, including while alive | Advance care directive = health, accommodation and personal decisions | All three can usually be done in one or two appointments

People tend to ask about "a will" and stop there. The enquiries we see are usually closer to the real need: a will, an enduring power of attorney and an advance care directive together, or a question about what the second two actually cost and involve. That gap matters because the will is the document least likely to be needed urgently. The other two protect you while you are still here.

This guide sets out what each document does under current South Australian law, what happens if you have none of them, how superannuation and jointly owned property sit outside your will, when to review the set, and how the three are usually put in place together. It draws on the questions we hear most often from clients working with our Gawler estate lawyer team.

Key takeaways

Most adults think of estate planning as writing a will. The will is one part of a three-document set, and the other two matter more while you are alive.

The will is now governed by the Succession Act 2023 (SA), which commenced on 1 January 2025 and replaced the Wills Act 1936 (SA).
An enduring power of attorney under the Powers of Attorney and Agency Act 1984 (SA) covers financial and property decisions and can be made to start immediately or only if you lose capacity.
An advance care directive under the Advance Care Directives Act 2013 (SA) covers health, accommodation and personal affairs, and can appoint substitute decision-makers.
Without these documents, an application to the South Australian Civil and Administrative Tribunal (SACAT) for a guardianship or administration order may be the only way for someone to act for you.
Superannuation and jointly owned property commonly sit outside the will altogether and need their own attention.
The set should be reviewed after marriage, separation, divorce, new children, a house move, a new business or a significant diagnosis.

Summary table

Source: Succession Act 2023 (SA), Powers of Attorney and Agency Act 1984 (SA), Advance Care Directives Act 2013 (SA).

Document	Governing Act	Covers	Takes effect
Will	Succession Act 2023 (SA)	Distribution of estate assets after death	On death, once validly executed
Enduring power of attorney	Powers of Attorney and Agency Act 1984 (SA)	Financial and property decisions	Immediately, or only on loss of capacity, as the document specifies
Advance care directive	Advance Care Directives Act 2013 (SA)	Health care, accommodation and personal affairs	When you are unable to make the relevant decision yourself

The will: the smallest part of the conversation, but still necessary

A will, an enduring power of attorney and an advance care directive tied together with a green ribbon

A will in South Australia is now made under the Succession Act 2023 (SA), which commenced on 1 January 2025 and replaced the Wills Act 1936 (SA), along with the Administration and Probate Act 1919 (SA) and the Inheritance (Family Provision) Act 1972 (SA). The formal requirements carried through: a will must generally be in writing, signed by the will maker with testamentary intention, and witnessed by two people present at the same time. If you die without a valid will, your estate is distributed under the intestacy rules in the current Act rather than according to your own wishes, and the court appoints an administrator because you did not choose an executor.

We have covered will validity, testamentary trusts and how a will can be challenged in detail elsewhere, including the six-month time limit for most family provision claims. See our guide to wills in South Australia for that ground. This article focuses on the two documents that are far more often missing: the enduring power of attorney and the advance care directive.

The enduring power of attorney: who manages your money if you cannot

An enduring power of attorney is a legal document appointing one or more people (the attorney, called the donee under the South Australian legislation) to make financial and property decisions on your behalf. It is made under the Powers of Attorney and Agency Act 1984 (SA), and its defining feature is that it keeps operating even if you later lose legal capacity, unlike an ordinary power of attorney, which ends the moment that happens.

When it takes effect

You choose when your enduring power of attorney starts operating. The prescribed form allows either immediate effect from execution, continuing regardless of any later incapacity, or delayed effect that only switches on if you lose legal capacity. Immediate effect gives your attorney authority to help straight away, which suits people who want practical assistance with banking or property matters even while well. Delayed effect keeps the document dormant until it is needed, though working out exactly when incapacity has been reached can itself become a difficult question, so the choice is worth discussing rather than defaulting to either option.

Signing and witnessing

The enduring power of attorney must be witnessed by a person authorised to take affidavits or statutory declarations. In practice this means a legal practitioner, justice of the peace, commissioner for taking affidavits or notary public. The attorney must also sign the document accepting the appointment, using the acceptance wording set out in the Act, before acting under it.

What an attorney can and cannot do

An attorney appointed under an enduring power of attorney must act in your best interests, keep full and proper records of everything done under the power, and pay your expenses from your own funds rather than their own. They cannot use the appointment for personal benefit unless the document specifically allows it, and they cannot make medical or personal decisions for you: that authority sits with an advance care directive, not a power of attorney. An attorney who breaches these duties can face personal liability and, in serious cases, prosecution.

Detailed advice on setting up or reviewing this document is available through the firm's power of attorney service.

The advance care directive: health, accommodation and personal decisions

An advance care directive lets you record your wishes about future health care, residential and accommodation matters and personal affairs, and lets you appoint one or more substitute decision-makers to act if you cannot make a particular decision yourself. It is made under the Advance Care Directives Act 2013 (SA), which commenced on 1 July 2014.

Before that date, South Australians used three separate documents: an enduring power of guardianship, a medical power of attorney and an anticipatory direction. The 2013 Act consolidated all three into the single advance care directive. If you made any of those earlier documents before 1 July 2014, it remains valid and is treated as an advance care directive under the current Act. You do not need to replace it, although any change to it must now be made using the current form.

Substitute decision-makers

Appointing a substitute decision-maker is optional, not compulsory, for an advance care directive to be valid: you can simply record your wishes without naming anyone to act for you. If you do appoint someone, they must accept the role in writing before you sign the directive, and they cannot be a person who lacks decision-making capacity themselves, your treating health practitioner, or a paid carer. A substitute decision-maker can make health, accommodation and personal affairs decisions within the scope you set, but cannot refuse drugs to relieve pain or distress, or the natural provision of food and liquids by mouth. The directive gives them no authority over your money or property (that is the attorney's role), and it cannot be used to carry out a role you hold as a trustee or executor.

Who can witness it

An advance care directive must be witnessed by an authorised witness of a kind listed in the regulations, such as a health practitioner, justice of the peace, legal practitioner, social worker or police officer. The witness cannot be the person's substitute decision-maker, a beneficiary under the person's will, the person's treating health practitioner, or someone in a position of authority at a facility where the person lives. The witness must give the person an information statement, explain the legal effect of the directive, and be satisfied the person understands it and is not acting under duress before witnessing the signature.

For SA Government guidance aimed at the general public, see the SA Health information on advance care directives.

Putting the three documents together

An adult daughter and her father reviewing estate planning documents together on a country verandah

Doing all three at once is more efficient than treating them as separate projects, because much of the background work overlaps. The usual sequence looks like this.

Take instructions on your assets, family circumstances, chosen executor, attorney and substitute decision-makers, and any specific wishes for each document.
Identify anything that needs separate attention outside the will, such as superannuation nominations or jointly owned property.
Draft the will, enduring power of attorney and advance care directive together so the appointments are consistent and nobody is asked to hold a role they are unsuited to.
Review the drafts with you, checking that the chosen attorney and substitute decision-makers understand what is expected of them.
Arrange proper execution: the will witnessed by two people present together, the enduring power of attorney witnessed by an authorised person with the attorney's acceptance signed, and the advance care directive witnessed by an authorised witness with any substitute decision-makers' acceptances completed first.

This can usually be managed in one or two appointments rather than three separate engagements, because the family and asset information gathered for the will directly informs the other two documents.

What happens if you lose capacity without these documents

If you become unable to manage your affairs or make personal decisions and have no enduring power of attorney or advance care directive, nobody automatically steps into that role, not even a spouse or adult child. A family member or other interested person would need to apply to the South Australian Civil and Administrative Tribunal (SACAT) under the Guardianship and Administration Act 1993 (SA) for an administration order (financial and property matters), a guardianship order (accommodation, health and lifestyle decisions), or both. SACAT decides who is appointed, and that may not be the person you would have chosen. Where there is no suitable family member, or the family disagrees, SACAT can appoint the Public Trustee or the Public Advocate instead. An administration order is also subject to periodic review by the Tribunal.

This process exists for good reason and it does provide protection. It is also slower, more public and less certain than choosing your own attorney and substitute decision-maker in advance. That gap is the practical argument for completing the enduring power of attorney and advance care directive at the same time as a will, rather than treating them as optional extras.

Superannuation and jointly owned property: outside the will

Two categories of asset commonly sit outside the will altogether, and an estate plan that ignores them is incomplete.

Superannuation is held by the trustee of your fund, not by you personally, so it is not automatically distributed under your will. Whether it goes where you intend depends on whether you have made a valid binding death benefit nomination directing the trustee to pay a specific person or your estate. A standard binding nomination generally lapses after a set period unless renewed, and if no valid binding nomination is in place the trustee exercises its own discretion, guided by the fund's rules and superannuation law, to decide which dependant receives the benefit. The Australian Taxation Office's guidance on superannuation death benefits explains how this operates at a general level; your fund can confirm its own nomination rules and current expiry period.

Jointly owned property held as joint tenants passes automatically to the surviving joint owner by survivorship, regardless of what your will says. Property held as tenants in common does not work this way: your share forms part of your estate and passes under your will. Knowing which category your property falls into is a necessary step before assuming a gift in your will actually controls it.

Why legal advice matters for this document set

Legal advice matters here because these are working documents used under pressure, often by people who are grieving, worried or under time constraints themselves. A lawyer can confirm that your attorney and substitute decision-maker appointments are properly executed, that the immediate-versus-delayed choice in your enduring power of attorney matches what you actually want, and that your superannuation nominations and property ownership line up with your overall plan rather than working against it.

Steven Clark is actively involved in supervising operations and overseeing standards of work. People considering this document set, or reviewing an old one, can get tailored advice from a Gawler estate lawyer before signing anything. General estate planning advice can also cover how the three documents interact with any business, trust or blended family arrangements you have.

When to review the set

Review your will, enduring power of attorney and advance care directive together whenever a material change happens in your life, rather than waiting for a fixed number of years to pass. Common triggers include:

marriage, separation or divorce
the birth of a child or grandchild
your chosen attorney, executor or substitute decision-maker dying, becoming unsuitable, or moving away
moving interstate or overseas
starting, buying or selling a business
a new health diagnosis affecting you or someone you have appointed
a significant change in assets, such as buying property or a large superannuation change.

An old enduring power of attorney naming an attorney who has since died, or an advance care directive naming a substitute decision-maker who has moved overseas, can leave you in the same position as having no document at all when it is actually needed.

My view: the documents people skip matter more while you are alive

My view is that the enduring power of attorney and the advance care directive deserve at least as much attention as the will, and for most working-age adults, more. A will only matters once, after death, and by then the drafting either worked or it did not. An enduring power of attorney or advance care directive can be needed at any point after an accident, a stroke, a serious diagnosis or simple old age, and if it is missing at that moment, your family's only path is an application to SACAT rather than acting on your own instructions.

People often come in asking for "a will" because that is the document they have heard of. When we ask what actually prompted the enquiry, it is frequently a parent getting older, a health scare, or simply the realisation that nobody currently has authority to act if something happened tomorrow. That is an enduring power of attorney and advance care directive question as much as a will question, and the sensible response is to do all three together rather than in stages.

This is general information rather than legal advice about your specific circumstances, so it should not be relied on as a substitute for tailored advice.

If you would like to put this document set in place or review an existing one, contact Steven M Clark and bring details of your assets, your preferred attorney, executor and substitute decision-makers, and any existing documents you already hold.

References

Legislation, forms and Tribunal procedures can change, so readers should confirm current requirements directly with the relevant SA Government agency, court or tribunal before relying on them.

Frequently asked

Questions about this

What are the three documents in a South Australian estate plan?

A will, an enduring power of attorney and an advance care directive. The will deals with your assets after death. The enduring power of attorney lets someone manage your financial and property affairs, including while you are alive but unable to act. The advance care directive covers health, accommodation and personal decisions and can appoint substitute decision-makers.

What happens if I lose capacity without an enduring power of attorney?

Nobody automatically gains authority to manage your money or sign on your behalf, even a spouse. A family member or other interested person would need to apply to the South Australian Civil and Administrative Tribunal for an administration order, and possibly a guardianship order, under the Guardianship and Administration Act 1993 (SA). This takes time and the Tribunal decides who is appointed, which may not be who you would have chosen.

Is an enduring power of attorney the same as an advance care directive?

No. An enduring power of attorney under the Powers of Attorney and Agency Act 1984 (SA) covers financial and property decisions only. An advance care directive under the Advance Care Directives Act 2013 (SA) covers health care, residential and accommodation matters and personal affairs. Most adults need both, because one does not cover the other's ground.

Do old enduring guardianship or medical power of attorney documents still work?

An enduring power of guardianship, medical power of attorney or anticipatory direction made before 1 July 2014 is still valid and is treated as an advance care directive under the Advance Care Directives Act 2013 (SA). You do not have to replace it, though any amendment must be made in the current form.

Who can witness an enduring power of attorney or an advance care directive in South Australia?

An enduring power of attorney must be witnessed by a person authorised to witness affidavits or statutory declarations, such as a legal practitioner, justice of the peace or notary public. An advance care directive needs an authorised witness listed in the regulations, such as a health practitioner, justice of the peace or legal practitioner, who is not the substitute decision-maker, a beneficiary, or the person's treating practitioner or carer.

Does superannuation pass under my will?

Not automatically. Superannuation is held by the trustee of your fund and is generally only paid according to your will if you have made a valid binding death benefit nomination directing that outcome, or if the trustee exercises its discretion that way. Jointly owned property held as joint tenants also passes outside the will, to the surviving owner.