Power of Attorney and Advanced Care Directive
Advance Care Directives cover what have previously been known as Enduring Powers of Attorney and Enduring Power of Guardianship.
At Scammell & Co. we have lawyers who can advise you and prepare documents that reflect your specific needs.
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.