Power of Attorney

If you need to assign someone to be responsible for your assets or finances on your behalf, the creation of a Power of Attorney document might be a viable option for you.

Do You Know the Difference?

General Power of Attorney

A General Power of Attorney is commonly used for short-term or specific purposes. It authorises someone to act for you, such as paying your bills or signing documents, while you still have legal capacity, but it automatically ends if you become legally incapacitated.

There are two types of Power of Attorney in South Australia, and the difference matters more than most people realise.
Enduring Power of Attorney

An Enduring Power of Attorney, by contrast is designed to continue even if you lose capacity. It allows someone you trust to step in and manage your financial affairs if you're no longer able to do so yourself whether due to illness, injury or cognitive decline.

Life doesn’t always give us notice. You might be travelling overseas, recovering from surgery, or facing health challenges that affect your ability to manage your financial affairs. That’s when a Power of Attorney becomes essential. It’s a legal document that allows someone you trust to make financial and legal decisions on your behalf while you are alive and effective during your lifetime. Once you pass away, it ceases and your will takes over.
Choosing the right one isn’t just about filling in a form. It’s about making sure the right person can act for you at the right time, with the right authority. If you lose capacity without an Enduring Power of Attorney in place, your loved ones may need to apply to SACAT to be appointed as your financial administrator, a process that can be time-consuming, stressful and outside of your control.
For over 42 years, Grope Hamilton Lawyers has been helping clients put the right legal structures in place. A well-prepared Power of Attorney provides clarity and ensures your wishes are respected and protected if you are unable to speak for yourself.

Power of Attorney Procedural Pathway

Power of Attorney Process Timeline

  • Step 1 – Pre-Signing

    Lawyer: Confirm the donor’s legal capacity and free will before drafting starts to ensure validity.

  • Step 2 – Drafting & Scope

    Lawyer: Draft clear wording, define powers, start date and any conditions (joint action, medical activation). Advise on lodging with Land Services SA if real estate is involved.

  • Step 3 – Execution

    Donor: Sign the document before an authorised witness (solicitor, Justice of the Peace or prescribed person).
    Donee: May also sign but not mandatory. All signatures must occur within the instrument’s effective period.

  • Step 4 – Certification & Storage

    Donor: Keep the original Power of Attorney document in a secure but accessible place. It's important that the donor retains control of the original document and ensures the donee knows its location.

    Lawyer: Certify copies of the Power of Attorney document, which may be required by banks, government departments or other institutions. If the Power of Attorney involves property transactions, a lawyer will usually lodge the document with Land Services SA on the donor's behalf.

  • Step 5 – Activation & Duties

    Donee: Manage the donor’s financial and legal affairs strictly within the authority granted by the Power of Attorney. This includes acting at all times in the donor’s best interests, maintaining full and accurate financial records, and ensuring that the donor’s assets remain entirely separate from your own.

  • Step 6 – Variation & Oversight

    Lawyer: Assist with future variations or revocation of the Power of Attorney, and notify the donee or relevant third parties where instructed by the donor. Provide legal support to donors, donees or other parties with a proper interest in the matter, such as family members or financial stakeholders, in raising concerns, responding to disputes, or initiating applications to SACAT or to the Supreme Court.
    Donee: Remain subject to legal oversight. Misconduct or acting beyond the authority granted may result in legal action, including removal of powers, the appointment of an independent administrator, or orders for compensation.

  • Step 7 – Termination

    Donee: Authority ends on donor’s death, formal revocation or court appointment of an administrator.

Power of Attorney – FAQs

Frequently Asked Questions

Appointing someone under a Power of Attorney is not just a formality. It gives that person, known as the donee or attorney, legal authority to act on your behalf in financial and legal matters, and with that authority comes significant obligations.

A donee is required to:

  • Act in the donor's best interests
    This is a legal duty. The donee must make decisions that serve the donor’s financial wellbeing and known wishes. They must avoid any conflict of interest and cannot personally benefit from their role unless explicitly authorised.
  • Stay within the scope of authority
    A Power of Attorney may set specific conditions or restrict certain powers. The donee must comply with these instructions. Acting outside those powers could render decisions invalid and expose the donee to personal liability.
  • Act with honesty, care and diligence
    The donee must manage the donor’s affairs responsibly. This includes understanding the donor’s financial obligations, managing cash flow, paying bills on time, and making reasoned decisions about property or investments.
  • Maintain accurate record keeping
    All financial transactions made on behalf of the donor must be recorded in detail. These records may be requested by interested parties, and failure to keep proper records is an offence under South Australian law.
  • Act without blending assets
    The donee must keep their own funds and the donor’s funds completely separate. Even if they are family members, joint use of bank accounts or property must be clearly documented, or avoided unless allowed in the document.
  • Act with confidentiality and transparency
    Any information gained while acting as a donee must be kept confidential and only used as legally permitted, for example when seeking professional advice or complying with a court process.

Importantly, the donee’s authority ends if the document is revoked or the donor passes away. A Power of Attorney does not give anyone the right to manage the donor’s estate after death. This is a seperate legal process, handled by an executor under the donee's will.

Yes. Both General and Enduring Powers of Attorney may be changed or revoked, provided the donor retains legal capacity at the time of revocation.

In South Australia, a donor can formally revoke a Power of Attorney using a Revocation of Power of Attorney form. However, the revocation process varies depending on whether the power is general or enduring.

To validly revoke a General Power of Attorney:

  • You must put the revocation in writing, stating your intention to cancel the previous appointment.
  • You should notify your attorney in writing, as their authority continues until they are informed of the revocation.
  • Relevant third parties, such as banks, real estate agents or service providers who relied on the document should also be notified.
  • If the document was lodged with the Lands Titles Office, a written revocation should also be lodged there to ensure it is no longer used for property dealings.

A General Power of Attorney will also cease automatically if:

  • You become legally incapacitated.
  • You or your donee dies.
  • The purpose or property it relates to no longer exists.
  • An expiry date within the document has passed.

To revoke an Enduring Power of Attorney:

  • Complete the official revocation form.
  • Have it properly witnessed by an authorised person, such as a solicitor or Justice of the Peace.
  • Provide a copy to each appointed attorney.
  • If the original was used for land dealings, the revocation form should also be lodged with Land Services SA.
  • Notify any banks or organisations that previously accepted the original document to ensure the attorney’s authority is no longer recognised.

If you no longer have capacity, you cannot revoke the document yourself. In that case:

  • The Supreme Court may allow the attorney to cease acting or revoke the document.
  • Alternatively, SACAT may appoint an administrator who has the authority to suspend, vary or revoke the enduring power.

If you suspect that someone appointed under a Power of Attorney is not fulfilling their obligations, such as mismanaging funds, failing to keep records or acting beyond the authority granted, it’s important to seek legal advice on time. At Grope Hamilton Lawyers, we can assist with:

  • Reviewing the Power of Attorney document
    We help you understand the scope of authority granted to the Donee, and whether their actions align with their legal duties under South Australian law.
  • Raising formal concerns where justified
    If the donor still has legal capacity, we can assist them to formally revoke the Power of Attorney and notify relevant institutions such as banks or Land Services SA.
  • Applying to the Supreme Court
    In cases where the donor has lost legal capacity and there is reason to believe the Donee is acting improperly, we can assist family members or other interested parties to apply to the Court.
    • Make an order for the donee to produce financial records.
    • Make an order for an audit of transactions.
    • Make an order for a variation or revocation of the Power of Attorney.
  • Assisting with SACAT processes
    We can assist clients in understanding the process, identifying whether SACAT involvement is appropriate, and preparing the necessary supporting documents.
  • Advising on recovery of financial loss
    If mismanagement has caused harm, we can help explore legal avenues for compensation, depending on the evidence and circumstances involved.

To find out what legal steps you can take in your situation, contact our expert team today.