What do you need a power of attorney for and who needs one?

    There may be a time when it's necessary to appoint someone to manage your financial affairs. This may be because there's an immediate short-term need, such as an extended overseas trip, or a long-term need to plan for the future where legal capacity may be impacted through age, disability or illness. It may be necessary in such situations to appoint someone to act as your power of attorney.

    What is the difference between general powers of attorney and enduring powers of attorney?

    General powers of attorney are powers that automatically end when the principal loses legal capacity (GPA). Enduring powers of attorney are powers that continue despite the principal’s legal incapacity (EPA).

    More information about GPA and EPAs can be found at https://lsc.sa.gov.au/cb_pages/powerofattorneyfactsheet.php

    Will the process for making a power of attorney be different?

    The draft Bill proposes changes to the way powers of attorneys are made, both general powers of attorney and enduring powers of attorney. The draft Bill includes improved protections for the witnessing of enduring powers of attorney and eligibility requirements of attorneys. There will also be approved forms for the community to use when making powers of attorney.

    If these laws are passed how will it effect my current power of attorney arrangements?

    The draft Bill includes transitional provisions in the Schedule. Those provisions make it clear that the reforms do not apply to a power of attorney created or purportedly created before the commencement of the reforms. However, some parts of the reforms do extend to a power of attorney created (or purportedly created) before the commencement of the reforms. These are the provisions relating to duties of the attorneys (Part 6), revocation and relinquishment of powers (Part 7) and review and resolution of matters (Part 8).

    What are the main changes for someone acting as an attorney (a person who is given a power of appointment)?

    The draft Bill updates the terminology used in the Powers of Attorney and Agency Act 1984 from ‘donor’ to ‘principal’ and ‘donee’ to ‘attorney’.

    The draft Bill includes eligibility requirements for attorneys, to assist in safeguarding against financial abuse. There is also greater clarity in terms of the duties of attorneys, with an outline of the general type of duties and those of a more specific nature such as the keeping of records, keeping property separate and conflict transactions.

    There are also new offences for the inappropriate exercise of power under a power of attorney. Maximum penalty is $10,000.  

    The statutory compensation provision has also been updated to enable the Supreme Court to order an attorney to compensate a principal for a loss caused by the attorney contravening a provision of the new Act relating to an enduring power of attorney.