Enduring power of attorney checklist - SA

Think about each point before you start to complete your Enduring Power of Attorney form and make notes of your preferences, questions and decisions.

Tick the boxes once you’ve completed each step. 

Please be aware this checklist is not a substitute for legal advice.

1. Get ready

Knowing as much as possible about an Enduring Power of Attorney (EPA) before you start to make one will make the process easier.

• Compass, ‘Introduction to enduring power of attorney’ webpage

• Compass, ‘Powers of attorney in South Australia webpage

• South Australian Government’s ‘Power of attorney’

  webpage

• The Australian Guardianship and Administration Council’s ‘You Decide Who Decides’ booklet on the Compass website

• Legal Services Commission of South Australia, ‘Powers of attorney’ webpage

• Legal Services Commission of South Australia, ‘Power of attorney’ brochure

• Office of the Public Advocate, ‘About enduring power of attorney’ webpage

If you’re unsure about any of these, visit the Compass ‘Helpful terms to know’ webpage.

• donor or principal (you, the person making the power of attorney)

• donee or attorney (the person you appoint under a power of attorney to make decisions for you)

• legal capacity (your ability to understand facts about your decisions, weigh up the consequences—i.e. the risks and benefits—of making decisions, and communicate consistent choices)

• legally incapacitated (you become unable to make and communicate your own decisions)

• general power of attorney (a legal document that authorises a donee to make financial decisions on your behalf while you still have capacity)

• enduring power of attorney (a legal document that authorises a donee to make financial affairs on your behalf if you lose capacity)

• jointly (2 or more donees must all make decisions together)

• severally (2 or more donees can each make decisions on their own)

• jointly and severally (2 or more donees can make decisions either on their own or together)

• revocation (cancellation of a previous act, such as making an EPOA)

• Compass ‘Powers of attorney in South Australia’

• Legal Services Commission of South Australia ‘Powers of attorney’ webpage

• Government of South Australia ‘Power of attorney’

  webpage

• If so, an EPA is the right option for your needs.

• If you want your financial decisions to be looked after while you still have capacity (for example, if you are in hospital or travelling overseas), you should make a general power of attorney (which requires a P1form in South Australia). The form and guidance notes are available from the Land Services South Australia website.

• If so, you need to make an advance care directive, which is a record of your wishes, preferences and instruction for these matters, should you become unable to make the decisions yourself.

• The advance care directive has replaced the old enduring power of guardianship, medical power of attorney, and anticipatory direction future planning options.

• As part of your advance care directive, you can choose to appoint a ‘substitute decision maker’, who will be authorised to make health care, end of life and other decisions for you if you cannot do so.

• Find out more about your future planning options on the Government of South Australia’s ’Advance care directives’ webpage

If you’ve ticked all those boxes, you should feel confident you have all the information you need.

Move on to the next list.

• You are over 18 and

• you understand the effect of making a power of attorney and

• you currently have legal capacity to make your own decisions.

Help is available to people who are making their EPAs. The next list will help ensure that you know who you can contact for advice and help.

• If you don’t currently have a lawyer, you can find one via the Law Society of South Australia website

• Public Trustee, which provides EPA services to eligible concession holders

• Legal Services Commission of South Australia’s Legal Helpline, phone 1300 366 424

Now you should be ready to start making your EPA.

2. Get started

The best way to make your EPA is to download and complete the official ‘Enduring power of attorney P2’ form. This form is available from the Land Services South Australia ‘Forms and guidance notes’ webpage (under Registration Forms’).

There is also a downloadable do-it-yourself kit available for purchase for a modest price from the Legal Services Commission of South Australia and Services SA. The kit includes detailed instructions and answers to common questions, so buying it could be well worthwhile.

Before you start filling in the form, read through it and the EPA guidance notes available with it. The guidance notes include explanations and tips to help you complete it, but you may still think of questions you want answered. Write down any questions you have if they’re not answered in the form.

• Compass ‘Powers of attorney’ webpage

• You Decide Who Decides, a booklet compiled by the Australian Guardianship and Administration Council

• Office of the Public Advocate, phone 1800 066 969

• Legal Services Commission of South Australia ‘Power of attorney’ brochure

• 24Legal ‘Knowing your rights: a guide to the rights of older South Australians’ booklet

• Your solicitor

• Your accountant

• Trusted family members

• Close friends whom you trust

You’ll need to decide who you’d like to be your donee(s), remembering that in South Australia you can appoint more than one donee.

• Family members (it doesn’t have to be your closest relative, if you don’t believe they are suitable)

• Trusted, close friends

• Neighbours

• Your partner (however, you should consider their own age and decision-making capacity; read more about partners as donees here

• Your solicitor or accountant

• The Public Trustee, if you’re eligible (check your eligibility here)

• An independent trustee company

• They are over 18 years old.

• You trust them.

• Compass ‘Being an attorney’ webpage

• You Decide Who Decides booklet, section 1 ‘Choose someone you trust’, pages 15–20

• Legal Services Commission of South Australia ‘Duties of a donee’ webpage

• If the person you’ve chosen doesn’t agree, consider someone else and talk to them about it.

• If they do agree, they must accept the appointment by signing your completed EPA form.

• jointly (all attorneys must make decisions together and all sign any document) or

• jointly and severally (they can make decisions together or independently) or

• severally (any one attorney can make decisions independently of the others and sign a document alone).

Next, decide on the details of your EPA and how you would like it to work for you.

• As soon as the EPA is witnessed?

• When a doctor confirms that you have become legally incapacitated?

• Do you have particular preferences for some matters—for example, transacting real estate or managing investments?

• Should your donee notify someone (e.g. your lawyer, your bank) that the EPA is taking effect before they make any of your decisions?

• Do you authorise for your donee in a financial EPA to give gifts from your finances?

• Can your donee use your money to meet the needs of your dependants, such as paying for rent, food, education or medical care?

• Have you thought about requiring your donees to submit your accounts to your accountant every year?

• Are there any specific instructions about personal matters that you’d like to record?

• You will need to have the details of all your donees before completing the form.

Once you have thought through all your preferences and found answers to your questions, you should be ready to fill in the EPA form.

3. Complete the form

The form is in a Word document format. You can complete your form on a computer if you have a Word-editing program, such as Microsoft Word, but you’ll need to print the completed form when you are ready to sign it. Alternatively, you can print the blank form to fill it in by hand with a black or blue permanent pen.

If you are completing the form on paper, you might like to think about printing 2 copies: one as a draft that you can change and make mistakes on, the other to become the final, unaltered copy.

• Land Services South Australia has both a ‘Power of attorney’(P1) form and an ‘Enduring power of attorney’ (P2) form. You will need the P2 form.

• You can download the P2 form and guidance notes from the Land Services South Australia

  website

• Alternatively, you can buy a downloadable do-it-yourself kit for a modest price from the Legal Services Commission of South Australia

• Fill in your full name and home address and that of your donee in the boxes. (If you have more than one donee, record all their details neatly in this space.)

• Indicate whether they are to act jointly or jointly and severally by crossing out one option in this box.

• Complete the declaration about when the EPA should take effect by striking out the inapplicable statement.

• Complete the section on conditions, limitations or exclusions. You may be as detailed as you like here and use the following page if you need to. If you don’t want to set any conditions, limitations or exclusions, write ‘not applicable’ and rule a line through the rest of this section (and the following page, if it’s not needed).

• Complete the page number at the bottom of each page (for example, ‘page 1 of 3’.

• Under ‘I/We’, write the full name of each donee on the lines. Cross out any unused lines.

• Your donee(s) need to sign their acceptance of the appointment, but not in front of a witness.

• Have each donee sign and date the section (in the same order as you’ve written their names).

4. Sign and witness

You must sign your EPA in front of a witness, who must be a person authorised by law to take affidavits, such as a Justice of the Peace, police officer or solicitor. Fees may apply for the service, depending on who your witness is.

• To find an authorised witness, visit the state Attorney-General’s Department ‘Authorised witnesses’ webpage.

• Check in advance whether you’ll be charged a fee and how it should be paid.

• Take photographic identification with you, such as your driver’s licence.

Your EPA form is complete! There are a few more steps to finalise it.

Once your EPA has been correctly witnessed, the last step is to decide where to keep it.

5. Deposit (if required) and store

In South Australia, you are not required to register your EPA unless it covers property decisions. You may store it at home yourself.

However, if your EPA authorises your donee to act on real estate matters on your behalf, it must be deposited with Land Services South Australia before they can make any property decisions. You don’t have to deposit your EPA straight away, but it’s a good idea to do so. A fee will apply.

• Visit the South Australian Attorney-General’s Department ‘Authorised witnesses’ webpage for up-to-date information on who is authorised to certify documents. A Justice of the Peace is usually the most convenient witness service.

• Get an extra copy if you are required to lodge your EPA with Land Services South Australia, because you will need to deposit the original document and a photocopy, so you’ll need one of the certified copies to keep for yourself.

• If you want to store the original EPA yourself, keep it in a safe place at home—perhaps with your will and other important papers.

• Give certified copies to all your donees.

• Give certified copies to any other relevant people, such as your solicitor, bank, care provider, accountant, family members and trusted close friends.

• You might like to keep a copy of this checklist with the certified copies of your EPA.

• Complete the Land Services South Australia ‘Power/enduring power of attorney checklist’

• At least one original and one photocopy of the signed EPA must be lodged.

• Present your forms and payment in person to the Land Services South Australia office address on the form, or mail it in.

• Note that the lodgement fee currently cannot be paid by card, only in cash or by cheque or money order.

And finally …

• Circumstances and relationships change, so it’s wise to review your plans regularly and make adjustments if needed.

Sometimes things change, and you may decide later that you want to appoint a different donee, alter the preferences that you recorded in your EPA, or revoke (cancel) your EPA completely.

6. Changing or revoking

In South Australia, you may change or revoke (cancel) your EPA at any time as long as you still have capacity.

• Has your donee changed their mind about agreeing to be your donee? Has your good relationship with your donee changed, or do you now have doubts that the person you nominated will act in your best interests?

• Do you now believe someone else would be better to handle your financial decisions for you?

• Have you changed how you want your future decisions to be made if you should lose capacity?

• Compass ‘Powers of attorney in South Australia: can I change or cancel my power of attorney?’ webpage

• Office of the Public Advocate ‘About enduring power of attorney’ webpage

Now you should be prepared to make the changes that you want.

To revoke an existing EPA, you must still have decision-making capacity and you must make the revocation in writing.

• You can download it from the Government of South Australia’s ‘Power of attorney’

  webpage

• You can purchase a copy online from Service SA for a very small fee

• You can use the copy included in the do-it-yourself kit you purchased from the Legal Services Commission or Office of the Public Advocate.

• Review the guidance notes before completing the form.

• Complete the form, then sign the completed form in front of a witness authorised by law to take affidavits, just like you did with your EPA.

• Download and complete the accompanying checklist.

• You’ll need to know the number of your EPA.

• Present your form, checklist and payment in person to the Land Services South Australia office address on the form, or mail it in.

• Note that the lodgement fee currently cannot be paid by card, only in cash or by cheque or money order.

• Provide them with copies of the completed revocation form.

• Make a note of how and when you tell them.

• Ask to have their copies of the previous EPA back.

To make a new EPA, follow this checklist again to complete the form.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.