Role and Operation of Powers of Attorney

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Consultation has concluded

Consultation Process


Now Closed

This online engagement was hosted on YourSAy from 22 May to 4 September 2020. Below is a record of the engagement.

We want your views on how the law in South Australia can be improved to better protect both the most vulnerable and their appointed attorney.

What’s being decided?

We are investigating whether the current laws that apply to Enduring Powers of Attorney (POAs) are effective and are working to protect vulnerable South Australians.

POAs:

  • Allow individuals (known as principals) to plan for their future by identifying clear legal arrangements for their financial affairs which

Consultation Process


Now Closed

This online engagement was hosted on YourSAy from 22 May to 4 September 2020. Below is a record of the engagement.

We want your views on how the law in South Australia can be improved to better protect both the most vulnerable and their appointed attorney.

What’s being decided?

We are investigating whether the current laws that apply to Enduring Powers of Attorney (POAs) are effective and are working to protect vulnerable South Australians.

POAs:

  • Allow individuals (known as principals) to plan for their future by identifying clear legal arrangements for their financial affairs which will take affect when they lose their decision-making capacity
  • Enable principals to choose to appoint a trusted person (attorney) in anticipation of losing decision-making capacity
  • Provide a mechanism by which individuals can control their future and have been described as ‘an important expression of autonomy’.

We've put together a video below that explains Powers of Attorney. You can view videos of the different areas of Powers of Attorney in our Explanation video tab.

These laws are contained in the Powers of Attorney and Agency Act 1984 (SA) (POA Act) and aim to ensure that those vulnerable are protected under law.

We are hoping 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
  • Consider alternative options implemented in other Australian jurisdictions

We want to hear from everyday South Australians as well as legal experts and medical and allied health professionals.

We are particularly interested in your personal experiences with the laws in this area but don't need or want any information that could identify individuals, so please be general when giving examples.

The fact sheets help explain the various areas of POAs that need to be considered. These include discussion questions to coonsider when giving feedback. The terminology reference list may help non-lawyers with some of the terminology used.

Get involved

You can be involved by reading the fact sheets and terminology reference list, then:

Please note that due to COVID-19 restrictions we will not be undertaking any in person meetings at this time.

Subject to the lifting of COVID-19 restrictions prior to August 2020, we also hope to host community roundtable consultations in Adelaide, Berri, Mount Gambier, Port Lincoln and Port Pirie. Details of these roundtables will be available on this site, as well as advertised in local papers and community radio, and on the SALRI website.

How can your input influence the decision?

Your feedback, as well as our research, will inform our recommendations to the State Government for any law reform required.

What are the next steps?

We will consider the submissions and provide a report by the end of 2020 with recommendations for the Government about how the law can be improved.

Contact details

For general inquiries, please email us at salri_poa@adelaide.edu.au

Closing date: 5pm, Friday 4 September 2020




Background


Now Closed

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.

Consultation has concluded
  • Fact sheets

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    Fact sheets

    Now Closed

    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.

    To help you understand the different areas included with POAs, we have created a number of factsheets to help, which also include a number of discussion questions to help guide the conversation.

    Click on the below fact sheet to learn more about the different areas of POA, and feel free to give feedback to any of the discussion questions we have asked.

    We have also put together a list of questions to assist your submissions.

    Discussion Questions

    If you would like to provide more input on any of the survey questions or the other issues SALRI is considering as part of this consultation, please make contact with us by email.

  • Explanation videos

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    Explanation videos

    Now Closed

    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.

    We have put together a set of videos that explain the different areas included with POAs. These videos can help you understand these issues and to give feedback.

    What are Powers of Attorney?

    Who to appoint as your Attorney?

    Who can be an Attorney and what are their duties?

    What is legal capacity and how is it assessed?

    Benefits and issues of a National Register of Power of Attorneys

    A description of current offences and potential remedies

  • Terminology reference list

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    Terminology reference list

    Now Closed

    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.

    SALRI wants to hear from everyday South Australians as well as legal experts and medical and allied health professionals as part of this reference.

    The following list may help non-lawyers with some of the terminology used in the Fact Sheets.

    ACD or ACDs

    Refers to an Advance Care Directive(s) (see below).

    Advance Care Directive

    A legal document conferring authority upon a person to make medical decisions in accordance with the individual’s values, preferences and directions. SALRI’s consultation does not concern Advance Care Directives.

    Attorney

    A person appointed by a principal under an Enduring Power of Attorney to make decisions on the principal’s behalf in the event that the principal has legal incapacity.

    Enduring Power of Attorney

    A power of attorney made under section 6 of the Powers of Attorney and Agency Act 1984 (SA). This power lasts or ‘endures’ when the principal has legal incapacity. An attorney’s powers under an enduring power of attorney are generally characterised as financial and legal powers.

    General Power of Attorney

    A power of attorney made under section 5 of the Powers of Attorney and Agency Act 1984 (SA). The attorney’s powers automatically end when the principal has legal incapacity. An attorney’s powers under a general (non-enduring) power of attorney are generally characterised as financial and legal powers.

    Legal capacity

    Means the principal is capable of making financial decisions – such as the sale of property, management of share portfolios and day-to-day transactions. Refer to the Capacity Factsheet.

    Legal incapacity

    Means the principal is not capable of making financial decisions – such as the sale of property, management of share portfolios and day-to-day transactions. Refer to the Capacity Factsheet.

    POA or POAs

    Refers to an Enduring Power of Attorney (see above). SALRI’s consultation does not concern General Powers of Attorney.

    POA Act

    Powers of Attorney and Agency Act 1984 (SA).

    Principal

    A person who makes an Enduring Power of Attorney document appointing an attorney to make financial decisions on their behalf.

  • Updates

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    Explanation videos released

    We've released a series of Powers of Attorney explanation videos.