Power of Attorney and Advanced Care Directive Services in Adelaide

A Power of Attorney is a document which authorises another person to deal with many of your legal and financial affairs. A Power of Attorney can be just as important as your Will. Your Power of Attorney operates while you are alive but ceases on your death, when your Will takes over. A Power of Attorney is a document signed by you giving another person authority to act as your agent when you need someone to look after your affairs.

An Advance Care Directive empowers you to make clear legal arrangements for your future health care, end of life, preferred living arrangements and other personal matters. It replaces Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions with a single Advance Care Directive Form.

Given the importance of these documents it is highly advisable to seek out experienced and professional advice, and the need for clear and carefully considered wording. Scammell & Co. can assist you with the preparation of your Power of Attorney and Advance Care Directive – including the precise wording to adopt to give effect to your wishes, and in the signing process by acting as an authorised witness.

Scammell & Co. have 6 offices located throughout South Australia including Adelaide CBD, Port Adelaide, Walkerville, Gawler, Renmark and Tanunda. Call or email us today to speak with a highly experienced lawyer about your matter, or to book an appointment at an office convenient to you.

FAQs Click on the questions below to reveal the answer.

What authority is given by a Power of Attorney document?

A Power of Attorney document gives the person, or people you choose, the authority to deal with your money, your assets, your finances and your legal affairs. The appointed Attorney can, for example, deal with Centrelink on your behalf, lodge your tax returns, operate your bank accounts, pay your bills sell your house, invest your money and use your money for your benefit.

There are different types of Power of Attorney documents, namely:

  • General Power of Attorney.
  • Enduring Power of Attorney.
  • General and Enduring Power of Attorney.

See the last part of this section headed Power of Attorney – and Advance Care Directives for more detail.

Why make an Enduring Power of Attorney?

Unexpected sickness or an accident can render a person unable to make legal or financial decisions in either the short term or long term. This can cause major difficulties for families if you have not prepared an appropriate Power of Attorney.

Are all Powers of Attorney enduring?

See explanatory notes under the heading Power of Attorney at the end of this section.

What is an Advance Care Directive?

An Advance Care Directive form is a legally binding document that expresses a person’s wishes and / or directions in the event that decision making is impaired or lost in the future. Only people over 18 years of age can make an Advance Care Directive.

For an Advance Care Directive form to be legally valid it must be in the correct form and the person making it must have the mental capacity to understand its nature and effect and the consequences of completing and signing the document. This must be done without any coercion, pressure, or influence by others.

Why should I make an Advance Care Directive?

Making an Advance Care Directive is a way of planning ahead and ensuring that your wishes are followed and that someone, who you know and trust, can legally look after your day-to-day care needs and lifestyle choices, if you are unable to do so.

What happens if you do not have an Advance Care Directive?

If you have impaired decision making capacity and do not have an Advance Care Directive form then the SACAT Tribunal will decide who can make your medical, personal and social decisions as well as decide where you live.

This may not be the person or persons who you would want to make the decisions for you. (This only applies if there is no Power of Attorney or not an Advance Care Directive.

Power of Attorney information

General Power of Attorney

  • Only comes into effect for a certain period of time.
  • Your Attorney cannot act for you if you suffer a legal incapacity.

Enduring Power of Attorney

  • Only comes into effect after you have suffered a legal incapacity.
  • Your Attorney cannot act for you unless you are legally incapacitated.

General & Enduring Power of Attorney

  • Generally comes into effect once it is signed by you and the person(s) you have appointed to by your attorney(s) and remains in full force and effect after you have suffered a legal incapacity.

Advance Care Directive information

An Advance Care Directive form allows a person to:

  • Set out values and wishes to guide decisions about their future healthcare and other personal matters.
  • Set out what, if any, particular healthcare they refuse and in what circumstances, and appoint one or more substitute decision-makers.
  • Refuse particular healthcare (whether express or implied) – this is a binding provision.
    • You can set out in when and under what circumstances the provision will be taken to be a binding provision.
    • All other provisions of an Advance Care Directive are non-binding provisions.
  • It replaces:
    • Enduring Powers of Guardianship.
    • Anticipatory Directives.
    • Medical Powers of Attorney.
  • Any Power of Guardianship executed before 1 July 2014 will be taken to be an Advance Care Directive under the Advance Care Directives Act 2013 (S.A.)
  • Any Directive or Medical Power of Attorney given before 1 July 2014 will be taken to be an Advance Care Directive under the Advance Care Directives Act 2013 (S.A.)

When does my Advance Care Directive come into effect?

As soon as it is signed by you and witnessed by an authorised person BUT can only be used by a substitute decision maker or health practitioner if the person who gave the advance care directive has impaired decision making capacity.

How many types of Powers of Attorney are there?

There are basically two types of Powers of Attorney. 

1. General Power of Attorney 
This allows someone to handle your affairs for you when you are still mentally and physically capable, but for some reason do not desire to do so. For instances, if you go overseas. A general Power of Attorney will cease if you become mentally incapacitated. 

2. Enduring Power of Attorney
This document enables someone to act on your behalf, regardless of whether or not you become mentally incapacitated after the Power of Attorney is granted.

As a safeguard you can build restrictions into your Power of Attorney. For instances you might place a restriction in it that your attorney may not sell or dispose of your real estate. You might also place a restriction requiring that a medical certificate be obtained, certifying your incapacity, before the Power of Attorney can be used. The responsibility you give to someone to handle your affairs is a significant one and you should only give your Power of Attorney to somebody you trust. Although a Power of Attorney does not grant the donee power to act against your wishes there is a danger of the power being used against your interest. 

It is important that you completely understand the meaning and implications of a Power of Attorney before you sign it. If you are unsure about the person you wish to appoint as your attorney or you do not think they would be capable of handling all of your affairs, you may wish to appoint more than one attorney and stipulate that they act jointly, that is they both must sign any documents. A person appointed under an Enduring Power of Attorney has particular responsibilities. He or she must act at all times with reasonable diligence and keep accurate records of all transactions. Once the person has accepted the Power of Attorney until he or she renounces the power, or the Power of Attorney is revoked by you or you die. If you become mentally incapacitated you cannot revoke the Power of Attorney and the person appointed can only renounce the Power with the permission of the Supreme Court.

What happens if you don’t have a Power of Attorney?

If you don’t have a Power of Attorney and become mentally incapable of handling your own affairs there are two options: 

1. Firstly, the SACAT can appoint an administrator. The administrator may be a suitable relative or friend from Public Trustee. If Public Trustee is appointed a commission is charged to act as your administrator. 

2. Secondly, the Supreme Court can appoint a Manager of your affairs pursuant to the Aged and Infirm Persons Property Act. The Court can appoint a suitable relative or friend of Public Trustee.

Making a Power of Attorney while you are of sound mind will avoid the expense and complications of the above procedures. A solicitor can advise you in relation to the granting of a Power of Attorney, help you to draft the appropriate documentation and make sure that it represents your interests. There are also Advance Care Directive Forms which relate to medical welfare and lifestyle matters as distinct from financial matters. These are not dealt with in this brochure.

What is an Advance Care Directive?

An Advance Care Directive empowers you to make clear legal arrangements for your future health care, end of life, preferred living arrangements and other personal matters. It replaces Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions with a single Advance Care Directive Form.

An Advance Care Directive allows you to:

  • Write down your wishes, preferences and instructions for your future health care, end of life, living arrangements, personal matters and/or
  • Appoint one or more Substitute Decision-Makers to make these decisions on your behalf if you are unable to do so in the future.

A Substitute Decision-Maker is an adult you choose and appoint in your Advance Care Directive to make decisions about your future health care, end of life, living arrangements and other personal matters when you are unable to make these decisions for yourself, whether for a short time only or permanently. The Substitute Decision-Maker(s) must sign the Form and accept their role.

Why should I complete an Advance Care Directive?

At some point in your life, there may come a time when you may be unable to make your own decisions. It could be because:

  • of a sudden accident or serious mental health episode
  • of dementia or similar condition
  • of a sudden serious stroke
  • you are unconscious or in a coma

If this happened, how would you want decisions to be made for you about your health care, living arrangements and other personal matters? More importantly, who would you want making these decisions for you? An Advance Care Directive makes it easy for others to know what your wishes are when you are unable to make these decisions yourself. It also gives you peace of mind to know that your wishes will be known and can be respected, if others need to make decisions for you.

What the Advance Care Directive is not

An Advance Care Directive is not a Will. It also cannot be used to make financial or legal decisions. It is recommended you think about putting in place an Enduring Power of Attorney to make decisions about your future finances and legal matters.

When will my Advance Care Directive come into effect?

Your Advance Care Directive only takes effect (can only be used) when you are unable to make your own decisions. You can make your own decision if you can:

  • understand information about the decision
  • understand and appreciate the risks and benefits of the choices
  • remember the information for a short time
  • tell someone what the decision is, and why you have made the decision

If, in the future you are unable to do these four things, it means you are unable to make the decision and someone else will need to make the decision for you.

What if I have other documents in place?

If you already have a valid Enduring Power of Guardianship, a Medical Power of Attorney or an Anticipatory Direction and they still conform with your wishes, these are still legally effective unless you complete an Advance Care Directive Form.

Who can write an Advance Care Directive?

You can write an Advance Care Directive at any stage of life – whether you are young, older, healthy or unwell. To write an Advance Care Directive: - 

 

  • it must be your choice
  • it must be in the approved form
  • you must be 18 years old or over
  • you must know what an Advance Care Directive is
  • you must know what it will be used for
  • you must know when it will be used

What about end of life decisions?

You are able to make binding refusals of certain health care in your Advance Care Directive. This includes refusals of life sustaining measures should you ever be in a persistent vegetative state or in the terminal phase of a terminal illness.

What if I don't have an Advance Care Directive?

Certain people may still make decisions in relation to your health care if you lose the ability to do so yourself, but may argue over who makes decisions for you if they do not know your wishes. This might not necessarily include family members. An Advance Care Directive formally records your wishes and allows you to avoid arguments amongst your family members as to who has priority to make decisions for you.

Free legal advice.

If you have some questions, want some advice or want to get the process underway, contact Scammell & Co. to arrange a meeting. In many cases (not all) the first 30 minutes of your first meeting is free. This can give time to outline your matter and for us to give you preliminary advice.

Our Offices

Port Adelaide

235 St Vincent Street,
Port Adelaide
South Australia 5015
(08) 8447 4466
8.30am-5.00pm
Mon-Fri

Adelaide

86 Franklin Street,
Adelaide
South Australia 5000
(08) 8212 6875
8.30am-5.00pm
Mon-Fri

Walkerville

107 Walkerville Tce,
Walkerville
South Australia 5081
(08) 8342 0300
8.30am-5.00pm
Mon-Fri

Gawler

8 Union Street,
Gawler
South Australia 5118
(08) 8522 7160
8.30am-5.00pm
Mon-Fri

Renmark

By Appointment
(08) 8586 6764

Tanunda

By Appointment
(08) 8522 7160

After Hours0412 975 081 – Evenings, Weekends, Public Holidays

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