Your family has no automatic right to act
Most people assume that if something happens to them, their spouse or children will step in and take care of things. That assumption is wrong.
If you lose mental capacity without the right documents in place, your family has no automatic legal authority to manage your finances, access your accounts, or make decisions about your medical care. The Guardianship Board decides who holds those powers. That process takes time. It costs money. And it happens at the worst possible moment.
Two documents change that entirely: an Enduring Power of Attorney (written authority for your chosen person to manage your finances) and an Advance Care Directive (written instructions for your medical care and lifestyle if you lose capacity). Together, they put your chosen people in control, not a government board.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal document that appoints a person to make decisions about your finances and assets on your behalf. Unlike a general power of attorney, an enduring appointment continues to be effective if you lose mental capacity, which is precisely when it matters most.
Who should appoint one?
Every adult over 18 should have an Enduring Power of Attorney. Incapacity does not wait for old age. An accident or sudden illness can happen at any time. This is not a document for the elderly. It is for any adult who wants their chosen people making decisions, not the Guardianship Board.
Who you can appoint?
You may appoint one person or more than one. Where more than one attorney is appointed, you can direct that they act jointly (all decisions made together), jointly and severally (either may act independently), or as alternatives in case of death or incapacity of a first-appointed attorney.
What your attorney can do?
Your attorney has the power to manage your finances and assets, including dealing with real estate and accessing your bank accounts. They must always act in your best interests. They cannot make decisions about your medical treatment or daily care: those decisions belong to your Advance Care Directive.
What you can control?
You may specify conditions or limitations on the power you grant. You may direct that the power commences immediately or only upon incapacity. You can revoke the appointment at any time while you retain mental capacity.
Important: separation from a spouse or partner does not revoke their appointment as your attorney. If your circumstances change, your documents must change with them.
Advance Care Directive
An Advance Care Directive is a legal document that appoints one or more Substitute Decision-Makers to make decisions about your medical care, health, and living arrangements if you lose mental capacity. It may also record your specific wishes and instructions for future health care and end-of-life matters.
An Advance Care Directive replaced the older Enduring Power of Guardianship and Medical Power of Attorney in South Australia from 1 July 2014. If you have an older document, it may still be valid, but we recommend a review.
Who should complete one?
All adults should have an Advance Care Directive. Hospitals, nursing homes, and retirement villages increasingly request or require a valid Advance Care Directive for patients and residents. Without one, medical decisions may be made by people you would not have chosen, and treatment you would have refused may proceed.
Who you can appoint?
You may appoint one Substitute Decision-Maker or more than one, on the same joint, joint and several, or alternative basis as an Enduring Power of Attorney. You may also choose not to appoint anyone and use the document solely to record your wishes and instructions.
Refusal of health care
Your Advance Care Directive can specify medical treatment you wish to refuse. A written refusal of health care is legally binding on treating practitioners if it is relevant to your circumstances at the time. The document must be carefully drafted to be unambiguous. This is not a document to prepare without experienced legal guidance.
What your Substitute Decision-Maker cannot do
A Substitute Decision-Maker cannot request voluntary euthanasia, refuse food or water given by mouth, or refuse medicine for pain or distress. They also cannot make financial decisions: that authority belongs to your Enduring Power of Attorney.
Why these two documents work together
Your Enduring Power of Attorney covers your finances. Your Advance Care Directive covers your health and personal care. Neither document covers both. A properly prepared estate plan includes both, prepared together, so there are no gaps and no conflict between the two.
Our team prepares both documents as part of a single estate planning review. We examine your full position across all documents so that your chosen people have clear, legally sound authority to act in every area that matters.
What is at stake without these documents?
- Without an Enduring Power of Attorney, the Guardianship Board appoints who manages your finances if you lose capacity. Your family has no automatic right to act. The process is slow, expensive, and emotionally devastating.
- Without an Advance Care Directive, medical decisions may be made by treating practitioners or people you would not have chosen. Treatment you would have refused may proceed.
- If you have separated from a spouse or partner and have not revoked their appointment, they may retain legal power over your finances and your medical care.
- An older Enduring Power of Guardianship or Medical Power of Attorney may no longer reflect your wishes or current circumstances.
Sort this out properly
Book a conversation with our team. No obligation. No pressure. Just a clear picture of where you stand and what needs to change.
One conversation with our team gives you a clear picture of exactly where you stand and what needs to be put in place.
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Download our plain-language guide: Enduring Power of Attorney (Financial). Written for South Australians, not lawyers.
Download our plain-language guide: Advance Care Directives. Written for South Australians, not lawyers.