An Enduring Power of Attorney is a formal legal document which allows you (as the “donor”) to nominate a person (known as the “donee” or “attorney”) and give them the power and authority to perform acts on your behalf if you are unable to act yourself.
You can only create an Enduring Power of Attorney if you are over 18 years of age and have mental capacity. That is, you must be of sound mind and be capable of understanding the general nature of what will be achieved by the making of an Enduring Power of Attorney.
An Enduring Power of Attorney only allows your attorney to act with regard to your property and financial matters.
You can also limit the purpose for which the Enduring Power of Attorney can be used. For example, if you were leaving the country you may make an Enduring Power of Attorney allowing your attorney to sign a contract to purchase a property on your behalf only whilst you are away.
For many people, particularly elderly people, you may simply wish to make an Enduring Power of Attorney to deal with all of your financial affairs.
Enduring Powers of Attorney are referred to as “Enduring” because the document continues (endures) even in the event of (and often only when) the donor suffers a mental incapacity. Other types of Power of Attorney would ordinarily be revoked (cease giving authority) when the donor loses capacity.
Creating an Enduring Power of Attorney does not stop you from being able to act for yourself with regard to your own financial decisions. It merely allows your attorney to also act for you if required. It is important to note that if your attorney wishes to act on your behalf, he or she must produce either the original Enduring Power of Attorney or a certified copy of the Enduring Power of Attorney.
You should have an Enduring Power of Attorney as you do not know when it may be required. Take the following example. A husband and wife do not have a joint bank account. However, the husband has recently been in a serious car accident and is now in a coma. In this situation, the wife would not be able to access the husband’s bank account without making an application to the Guardianship Board of South Australia to become his attorney. This Application can take up to 30 days to yield a decision, and further, there is no guarantee that the wife would be made the attorney. This would leave the wife in a difficult position if the husband was the sole income earner.