This online engagement was hosted on YourSAy from 22 May to 4 September 2020. Find out more about the consultation process. Below is a record of the engagement.
The South Australian Law Reform Institute (SALRI) is an independent law reform body which conducts inquiries, also known as references, into areas of law. The areas of law are determined by the SALRI Advisory Board and sometimes at the request of the Attorney-General of South Australia. SALRI looks at how the law works in other places, any research available and speaks to the community and interested parties. Based on its research and consultation throughout an inquiry, SALRI then makes recommendations to the State Government so that the Government can make informed decisions about any law reform.
SALRI's recommendations do not automatically become law, but they may be acted upon and accepted by the Government and Parliament. When undertaking its work, SALRI has a number of objectives. These include identifying law reform options that would modernise the law, fix any problems in the law, consolidate areas of overlapping law, remove unnecessary laws, or, where desirable, bring South Australian law into line with other States and Territories. SALRI was established in December 2010 under an agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. It is based at the Adelaide Law School.
SALRI is an independent law reform body and can not provide legal advice.
A POA and an Advance Care Directive (ACD) are two distinct legal documents. Many often conflate these documents. It is necessary to emphasise that an ACD is a legal document conferring authority upon a person to make medical decisions in accordance with the individual’s values, preferences and directions. In contrast, a POA confers authority upon a person to make financial decisions. This project is only concerned with POAs.
POAs apply specifically to management of finances, property and other assets and are commonly used, due largely to the policies of financial agencies and institutions that require formal arrangements in place before allowing a person to manage another’s finances.
Instances arise where the principal lacks decision-making capacity, and the attorney abuses their role to receive an ‘early inheritance’ or otherwise misuses the principal’s funds. Examples include draining bank accounts or transferring the family home into the attorney’s own name. In most cases, the principal will lack the ability to monitor their attorney’s actions and even if they are able to, it is unlikely that they will report the abuse given their position of vulnerability. The principal will often be socially isolated and highly dependent on those around them. The effect of financial impropriety on a principal’s financial security can be a permanent and life-threatening setback.
While originally designed with good intentions in mind, the laws that apply to Enduring Powers of Attorney can now have unwelcome results in practice, particularly as families become more complex and as wealth continues to become more concentrated in South Australia’s ageing population.
This consultation is designed to identify the problems or concerns with the current law, gather the views of the South Australian community about how the law could be improved, and consider alternative options implemented in other Australian jurisdictions.