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Enduring Power of Attorney in SA: 10 Checks for Couples
PA Law Pty Ltd · Gawler, Adelaide and South Australia · Updated
For many couples, one person handles bills while the other manages investments, paperwork or property matters. That practical division of work can hide an important question: what authority would each person actually have if the other could no longer give instructions?
Inspired by PA Law’s video about spouses and power of attorney, this article explores ten planning checks, including accounts, property, safeguards and alternatives when no suitable appointment exists.
1. Check authority rather than relying on marriage
Your husband, wife or partner is not automatically appointed to manage your affairs. The Legal Services Commission’s brochure expressly distinguishes family relationships from legal authority.
Find any document you have already signed and check who is appointed, what it permits and when it operates. Do not rely on a recollection that “we did all that years ago”. A bank authority, an enduring power of attorney and being named executor in a Will are different arrangements.
Question to ask: “If I could not give instructions tomorrow, which document would let someone deal with this particular matter?”
2. Look beyond the joint bank account
A joint account may help with everyday payments if its operating rules allow one person to transact. The Law Handbook’s guidance on capacity recognises that some affairs can be handled through existing arrangements. That does not make a joint account a complete substitute for financial planning.
Check the bank’s rules, then look at assets held separately, investments, loans and documents requiring your personal authority. Owning a home together does not itself establish a right to sign for the other owner.
For dealings with land, ask your solicitor about the power’s scope and any lodgement requirements before a transaction becomes urgent. The Office of the Public Advocate provides guidance on registration for property sales.
Business and trust interests also need separate attention. A personal appointment is not a complete business succession plan. In particular, the Law Handbook explains limits on delegating trustee and personal representative functions. Bring the relevant business or trust documents to your appointment.
3. Match each document to its purpose
A general power of attorney does not continue through legal incapacity. An enduring power of attorney can. Neither performs the same role as a Will or Advance Care Directive. SA.GOV.AU explains general and enduring powers of attorney.
| Document | Main role | Planning question |
|---|---|---|
| Enduring power of attorney | Legal and financial decisions during life, subject to its terms | Who may manage my affairs, and when? |
| Advance Care Directive | Future health care, accommodation and personal decisions | What are my wishes, and who should make relevant decisions if I cannot? |
| Will | Estate arrangements after death | Who should administer and inherit my estate? |
Explore our Advance Care Directive services and estate planning services when considering the documents together.
4. Choose for trust, ability and availability
Your spouse may be your preferred attorney, but consider who else could help if they became ill or unavailable. Ask prospective attorneys whether they are willing to accept the responsibility. Discuss availability, record keeping and how they would handle a difficult financial decision.
For a blended family, consider whether your proposed choice may create tension between a partner and adult children. Naming someone to keep the peace is not enough: explain your circumstances and concerns to your solicitor so the appointment reflects your wishes.
5. Understand joint and separate decision-making
Where attorneys act jointly, they must act together. Where they act jointly and severally, they can act independently as well as together, subject to the document. The Law Handbook’s safeguarding guidance explains this distinction.
A requirement to act together can provide a check, but may create practical problems if people disagree or one cannot act. Separate authority may be more convenient but permits independent decisions. Ask what happens if an attorney dies, loses capacity or wants to stop. The answer depends on the appointment’s wording.
6. Decide when the authority should begin
An enduring power of attorney can operate immediately or only during periods of legal incapacity. Check the commencement clause and any evidence it requires. Making the document does not, by itself, remove your ability to manage your own affairs.
Ask how the arrangement would work in practice. Who would provide a copy to the bank? What would demonstrate that a condition has been met? What should an attorney do if an institution queries the wording? Clarifying this during preparation is easier than relying on assumptions later.
7. Address capacity and signing properly
You must understand the nature and effect of the appointment when you make it. Physical difficulty signing does not necessarily mean you lack legal capacity. Nor should a diagnosis alone be treated as the answer to a particular capacity question.
If there is uncertainty, seek legal advice about assessment and appropriate medical evidence. Do not rush someone into signing or assume that a spouse can complete an appointment on their behalf. The Law Handbook discusses these capacity issues.
Ask your solicitor to explain the required form, witnessing and the attorney’s acceptance. Mention any communication, mobility or accessibility needs when booking so suitable arrangements can be discussed.
8. Build in safeguards and understand the duties
An attorney must act within the authority given, act in your interests and keep proper records. Their appointment does not give them ownership of your money or an early entitlement to an inheritance. The Law Handbook’s explanation of an attorney’s duties is a useful starting point.
Discuss safeguards such as statements being provided to a trusted person, consultation before major transactions or carefully drafted restrictions. Requirements should be workable for your circumstances. They cannot guarantee that misuse will never occur.
Before an attorney makes a family gift, transfers property to themselves or enters a transaction involving a conflict, obtain advice. If you suspect misuse, keep relevant records and seek help promptly; do not assume that a family relationship makes the transaction authorised.
9. Know what happens if no suitable authority exists
If someone cannot manage their affairs, an administration order may be needed. However, SACAT considers current arrangements and alternatives; not every family needs an order. See SACAT’s guidance on other options.
If an order is necessary, SACAT considers who is suitable. A family member or friend may be appointed, but appointment of a spouse is not automatic. Availability, ability and conflicts matter. SACAT explains administrator suitability and responsibilities.
Tell your adviser what decision is needed, why it is urgent, what documents exist and whether there is disagreement. A property settlement, unpaid account and ongoing investment management may present different issues.
10. Review the plan when circumstances change
Marriage, separation, a new relationship, an attorney’s illness or death, interstate assets and changed business arrangements are reasons to review your documents. Do not assume that a relationship change has dealt with an existing appointment.
While you have the required legal capacity, an enduring power of attorney can be revoked. Obtain advice on the revocation, replacement documents, notification to attorneys and institutions, and any registration steps. The Law Handbook explains ending a power of attorney.
An enduring power of attorney ends on the donor’s death. The estate administration process then becomes relevant. Read our separate article on what happens when power of attorney ends at death.
A practical action plan for couples
- Find: gather your existing appointments, Wills and Advance Care Directives.
- Map: list major assets, bills and responsibilities, identifying what is separate, joint or held through an entity.
- Discuss: identify whom each of you trusts and whether they are willing and available.
- Ask: note questions about commencement, multiple attorneys, safeguards and backup arrangements.
- Review: obtain advice, complete the appropriate documents and arrange safe storage and accessible copies.
Frequently asked questions
Do married couples need separate enduring powers of attorney?
Each person needs to make their own appointment if they want to give someone authority over their affairs. One spouse’s document does not appoint an attorney for the other. The arrangements should reflect each person’s wishes and circumstances.
Does a joint bank account replace an enduring power of attorney?
No. An account mandate may allow one holder to carry out certain transactions, but it does not create general authority over the other person’s separate assets or legal affairs. Ask the bank what applies to the particular account and obtain advice about wider planning.
Can I appoint my spouse and an adult child together?
Yes, more than one attorney can be appointed. How they act depends on the wording, including whether they must act jointly or can act separately. Consider possible disagreements and what happens if one can no longer act.
Does making an enduring power of attorney mean I lose control?
No. Making the appointment does not itself prevent you from managing your affairs while you are able to do so. Your attorney’s powers and commencement depend on the document.
Can someone with a dementia diagnosis make an enduring power of attorney?
The relevant question is whether the person has the legal capacity required to understand and make that appointment. A diagnosis alone does not answer that question. Seek legal advice and, where appropriate, medical evidence before signing.
Can my attorney give my children an early inheritance?
Do not assume so. Appointment as attorney does not transfer ownership of your assets. Any proposed gift must be assessed against the document, the attorney’s duties and the circumstances; obtain advice before money is transferred.
Will SACAT automatically appoint my spouse if there is no document?
No. SACAT considers whether an order is needed and who is suitable. Family members may be appointed, but the person’s circumstances, the proposed administrator’s ability and any conflicts of interest are relevant.
Can I change my enduring power of attorney after separation?
You can revoke an enduring power of attorney while you have the required legal capacity. Obtain advice on revoking or replacing it, notifying the attorney and relevant institutions, and any registration requirements.
Watch the related PA Law video
Manal Amro, Principal Solicitor of PA Law, explains why marriage alone does not authorise a spouse to manage financial affairs.
Read the companion video guide or watch on YouTube.
Discuss your enduring power of attorney with PA Law
PA Law assists clients in Evanston South, Gawler, Adelaide and across South Australia with preparing and reviewing enduring powers of attorney. Bring your existing documents and explain what you want your arrangements to achieve.
Read about our enduring power of attorney services, or contact us to discuss appointment availability, the proposed work and costs.
General information about South Australian law only, not legal advice. Obtain advice based on your circumstances and the actual documents before acting.