Most people think of estate planning as writing a will, and treat it as done once the will is signed.
A will governs what happens after you die. It does nothing at all while you are alive but unable to make decisions, and that period can last years. The documents that cover incapacity are entirely separate, and in South Australia there are two of them rather than one.
Getting this wrong is common and expensive. Families discover the gap at the worst possible moment, usually in a hospital corridor or when a bank refuses to act.
The split that catches South Australians out
In South Australia, decision-making authority is divided across two documents that do quite different jobs.
An Enduring Power of Attorney, made under the Powers of Attorney and Agency Act 1984 (SA), covers financial and legal matters. Banking, investments, property, tax and business decisions. It covers the management of your financial affairs and nothing else.
An Advance Care Directive, made under the Advance Care Directives Act 2013 (SA), covers personal matters: future health care, residential and accommodation arrangements, and personal affairs.
Neither one covers the other’s territory. An attorney appointed under an enduring power of attorney cannot consent to your medical treatment or decide where you live. A substitute decision-maker under an advance care directive cannot operate your bank accounts.
People who have organised one and assumed it covers everything are surprisingly common, and it is usually the health side that is missing.
The enduring power of attorney
An ordinary power of attorney ceases the moment you lose capacity, which makes it useless for the situation people are actually worried about. An enduring power of attorney is the version that continues to operate after capacity is lost. That word “enduring” is the entire point.
You can appoint anyone over 18 who has capacity to make their own decisions. Family members, friends, a solicitor or a licensed trustee company are all possible. Eligible concession card holders can appoint the Public Trustee, though the Public Trustee no longer acts for non-concession card holders.
You can appoint more than one attorney, and how you structure that matters. Appointing people jointly means they must act together on everything, which is a safeguard but can be paralysing if one is overseas or they disagree. Appointing them severally allows any of them to act alone, which is convenient and less protective. Neither is universally right.
The witnessing requirements are strict and specific, and errors here can invalidate the document. If the attorney will deal with real property, registration requirements may also apply. Both are reasons to have a solicitor prepare it rather than relying on a form found online.
The advance care directive
The advance care directive was introduced in 2013 and commenced in July 2014. It must be made on the official form, which is available through Services SA, the Legal Services Commission, or the Advance Care Directives website.
It does two things, and you can do either or both.
You can appoint one or more substitute decision-makers to make health, accommodation and personal decisions if you cannot. Unlike an enduring power of attorney, appointing someone is optional. An advance care directive can simply record your wishes without naming anyone at all.
You can also write down your values, wishes and instructions about future care, including end-of-life directions. The more clearly those are expressed, the better placed your substitute decision-maker is to make the decision you would have made. That guidance is a gift to whoever has to make those calls, because the burden on families is heaviest where nothing was ever said out loud.
An advance care directive only operates when you lack decision-making capacity for the particular decision. While you can decide for yourself, you do.
Witnessing requires an authorised witness drawn from a list set out in the regulations, which includes justices of the peace, health practitioners and various others. The witness has to explain the legal effect of the document and be satisfied you understand it, which is a more involved role than simply signing.
If you have older documents
Before July 2014, South Australia used three separate instruments: enduring powers of guardianship, medical powers of attorney and anticipatory directions. None of those can be made any longer.
If you made one before July 2014, it remains valid. Documents made under the old regime are generally taken to be advance care directives, and agents appointed under them are treated as substitute decision-makers. You are not required to replace them.
That said, a document written more than a decade ago often names people whose circumstances have changed, and reflects views about care that may have moved. Reviewing it is worthwhile even though replacing it is not compulsory.
What happens if you have neither
This is the part worth understanding before deciding whether the paperwork is urgent.
If you lose capacity without these documents in place, nobody automatically inherits the right to act for you. Not your spouse, not your adult children. The common belief that a husband or wife can simply step in is wrong, and it fails precisely when it is needed.
Instead, someone must apply to the South Australian Civil and Administrative Tribunal. SACAT can appoint an administrator to handle financial matters and a guardian for personal and health decisions. It is a formal process with an application, evidence about capacity, and a hearing.
Three consequences follow. It takes time, during which bills still arrive and decisions still need making. It costs money. And the tribunal decides who is appointed, which may not be who you would have chosen, and the process can crystallise family disagreements that had previously stayed beneath the surface.
Both documents exist specifically to keep your affairs out of that process.
Why this sits inside your financial plan
These are legal documents, but the consequences of not having them are overwhelmingly financial, and several are specific enough to be worth naming.
Nobody can move your money. Without an enduring power of attorney, no one can rebalance your investments, switch your super to pension phase, draw a pension payment, sell an underperforming holding or even pay your bills from your accounts. Markets do not pause while a tribunal application is processed.
Aged care decisions have a funding side. A move into residential care generally requires decisions about the family home, refundable deposits and ongoing contributions. Those are financial decisions attached to a personal one, which means both documents are engaged at the same time.
Self managed super funds have a hard requirement. If a member of an SMSF loses capacity, the fund can fall out of compliance unless the member’s legal personal representative, typically the holder of their enduring power of attorney, is appointed as trustee or director in their place. Without a valid enduring power of attorney, that appointment is far more difficult, and the consequences of a fund losing complying status are severe. Any SMSF member without an enduring power of attorney has an unaddressed problem.
Centrelink is separate again. Dealing with Services Australia on someone’s behalf generally requires its own nominee arrangement, which is not automatically covered by these documents.
Superannuation death benefits are separate again. Super does not pass under your will, and it is not covered by these documents either. Binding death benefit nominations do that job, and they lapse in many funds. It is worth checking yours at the same time.
Mistakes we see
Assuming the will covers it. It does not, and this is the most common gap of all.
Assuming a spouse can act. They cannot, without either a valid document or a tribunal appointment.
Leaving it too late. You must have decision-making capacity to make either document. Once capacity is lost, the option is gone and SACAT is the only path. Families who begin organising paperwork after a diagnosis often find they have missed the window by months.
Appointing the wrong person for the wrong reason. The eldest child is not automatically the right choice. The role calls for someone organised, trustworthy, available and able to withstand pressure from other family members. Willingness matters too, so ask before appointing.
Nobody knowing the documents exist. A perfectly drafted enduring power of attorney in a drawer that nobody can find is worth nothing. Your attorney, your family and your GP should all know they exist and where they are.
Never revisiting them. Relationships end, appointed people die or become unwell, and views about care change. Documents made twenty years ago frequently name someone who is no longer appropriate.
Assuming interstate documents work seamlessly. If you have moved to South Australia from another state, or hold assets elsewhere, recognition rules vary and are worth checking rather than assuming.
How to get it organised
Advance care directive forms and information are available free through Services SA, the Legal Services Commission of South Australia on 1300 366 424, and the Advance Care Directives website. The Office of the Public Advocate publishes useful guidance and handles disputes about advance care directives.
For the enduring power of attorney, and for anything involving property, business interests, blended families or an SMSF, see a solicitor. The cost of having both documents prepared properly is modest against the cost of a SACAT application, and very modest against the cost of a document that fails when it is needed.
The practical sequence that works well is to have the conversation with your family first, decide who you want in each role and check they are willing, then have the documents prepared, then tell everyone where they are kept.
Where we fit
We do not prepare these documents, and we are not lawyers. What we do is make sure the gap is identified as part of your broader plan, that the arrangements line up with how your assets are actually held, and that the SMSF and superannuation angles are addressed rather than overlooked. We work alongside your solicitor rather than in place of one.
If you would like your overall position reviewed, including whether your financial plan holds together if you cannot make decisions for a period, we are happy to work through it with you.
Frequently asked questions
What is an enduring power of attorney in South Australia?
It is a document made under the Powers of Attorney and Agency Act 1984 (SA) that appoints someone to manage your financial and legal affairs, and which continues to operate after you lose decision-making capacity. An ordinary power of attorney ceases on loss of capacity, which is why the enduring version exists. It does not cover health or personal decisions.
What is the difference between an enduring power of attorney and an advance care directive?
An enduring power of attorney covers financial and legal matters only. An advance care directive, made under the Advance Care Directives Act 2013 (SA), covers personal matters including future health care, residential and accommodation arrangements and personal affairs. They are separate documents and neither covers the other’s territory, so most people need both.
Do I have to appoint someone in an advance care directive?
No. Unlike an enduring power of attorney, which must appoint an attorney, an advance care directive can simply record your wishes about future health care and living arrangements without naming a substitute decision-maker. You can also do both, appointing one or more substitute decision-makers and setting out your wishes to guide them.
What happens in South Australia if I lose capacity without these documents?
Nobody automatically gains the right to act for you, including your spouse. Someone would need to apply to the South Australian Civil and Administrative Tribunal, which can appoint an administrator for financial matters and a guardian for personal and health decisions. That process takes time, costs money, and results in the tribunal choosing who is appointed rather than you.
Are my old South Australian documents still valid?
Yes. Enduring powers of guardianship, medical powers of attorney and anticipatory directions made before July 2014 remain valid, and are generally treated as advance care directives with the appointed person treated as a substitute decision-maker. None of those documents can be made any longer, and while replacing them is not required, reviewing them is sensible if circumstances have changed.
Can my attorney make medical decisions for me?
No. In South Australia an attorney appointed under an enduring power of attorney is limited to financial and legal matters. Health, accommodation and personal decisions fall to a substitute decision-maker appointed under an advance care directive, or otherwise to a guardian appointed by SACAT.
What happens to my SMSF if I lose capacity?
A self managed super fund can fall out of compliance if a member loses capacity and no valid arrangement is in place. The usual solution is for the member’s legal personal representative, typically the holder of their enduring power of attorney, to be appointed as trustee or director in their place. Without a valid enduring power of attorney that becomes much harder, which makes this document particularly important for SMSF members.
Important. This article contains general information only. Money Path does not provide legal services, and nothing here is legal advice. Enduring powers of attorney and advance care directives are legal documents with strict execution requirements, and they should be prepared with the assistance of a qualified solicitor. The law described applies in South Australia and differs in other states and territories. This article also contains general financial information that does not take into account your objectives, financial situation or needs, and you should seek personal financial advice before acting on it.
