Understanding power of attorney

A power of attorney (POA) is a legal document that allows a person (donor) to give another person (donee) the power to act on their behalf. This can include decisions about finances, property, or legal matters.

The person given this power must act carefully and protect the donor’s interests. They also have to agree to take on the role and its responsibilities.

Who can make a power of attorney

Any person over 18 who can understand what the document means and explain their decision.

If there are concerns that someone does not have decision making capacity, a doctor's written opinion is recommended. This can include a geriatrician or a neuropsychologist.

Types of power of attorney

General power of attorney

• used to manage financial or legal matters for a limited time or specific purpose
• only valid while someone still has capacity to make decisions
• ends if someone loses decision-making capacity or passes away.

Enduring power of attorney (EPA)

• a person can appoint someone to manage their financial and legal matters in the event they suffer a mental incapacity (such as illness, dementia, or injury) or
• a person can specify when the EPA comes into effect
• continues even after someone loses decision making capacity.

When is a power of attorney needed?

A person might set up a power of attorney if they:

• are going overseas or into hospital
• are preparing for future planning as they age
• want peace of mind that someone they trust can help if they become unwell or unable to manage their affairs.

What can a donee do?

A donee can:

• make financial decisions in a person’s best interests
• pay bills and manage bank accounts
• buy or sell property
• sign legal documents.

A donee cannot make lifestyle, healthcare, or medical decisions. Those decisions are made under Advance Care Directives.

Where to get a power of attorney

In South Australia, here is where to get help:

• A private lawyer.
• Use the do-it-yourself Enduring Power of Attorney Kit produced by the Legal Services Commission and the Office of the Public Advocate. Download a copy from the Legal Services Commission website.
• Purchase hard copy forms from any Service SA centre.

It is best to get legal advice before setting up a power of attorney.

How to cancel (revoke) power of attorney

A person can cancel (revoke) a power of attorney at any time as long as they still have decision-making capacity.

To revoke power of attorney:

1. Complete a Revocation of Power of Attorney form (included in the Enduring Power of Attorney Kit).
2. Notify the donee(s) in writing.
3. Inform any organisations or institutions (such as the bank) that held a copy of the document.

If there are concerns that someone is misusing a power of attorney

• Consider the type of power of attorney document.
• Document specific examples or evidence of the misuse.
• Speak with the person (donor) about your concerns and establish their wishes, and help them take safeguarding actions (for example, changing online banking details)
• If you are concerned about the donor’s decision-making capacity, report it to the relevant bank or financial institution and seek advice about whether an administration order may be required to protect the person’s finances.