Legal Video Guides › Spouses and power of attorney
Video presented by Manal Amro, Principal Solicitor, PA Law Pty Ltd. Guide updated .
Watch this 55-second PA Law video on YouTube.
The video addresses a common assumption: “We’re married, so my husband or wife can take care of everything.” An account held only in your name, or a document requiring your signature, can present difficulties if you become unable to give instructions. Your spouse’s relationship to you does not itself supply the missing authority.
Manal explains how an enduring power of attorney allows you to choose who may act, why it must be prepared while you have legal capacity, and why an application to the South Australian Civil and Administrative Tribunal (SACAT) may sometimes become necessary. This is a written summary of the video, followed by additional planning information.
Make a practical list of your accounts, property, regular bills and any approaching transaction dates. Note which assets are in your name alone and which are jointly held. Use the list to explain your circumstances to your solicitor; you do not need to put account numbers or passwords into a general enquiry.
For example, consider a couple preparing to sell a home when one becomes unable to give instructions. The questions include who owns the property, what authority already exists and what documents are required. This is an illustrative situation, not a prediction of what will happen in every family.
A general power of attorney and an enduring power of attorney serve different purposes. A general authority does not continue through legal incapacity; an enduring authority is designed to do so. Read the document itself rather than relying on what you remember signing.
SA.GOV.AU explains the difference between general and enduring powers. Preparing an enduring document does not, by itself, stop you managing your own affairs while you remain able to do so.
Consider willingness, reliability and availability when deciding whom to appoint. Your spouse may be your preferred choice, but discuss what should happen if they cannot act. If you are considering more than one attorney, ask how the appointment should operate and what happens if one becomes unavailable.
The commencement clause matters. Authority may begin immediately or only during periods of legal incapacity. The Legal Services Commission’s power of attorney brochure explains these options. Ask your solicitor to explain the powers, any restrictions and the evidence needed before the document is used.
A power of attorney cannot be made on your behalf by a relative. You need the required legal capacity when making it. If there are concerns about capacity, seek advice about whether medical evidence is appropriate. An illness or diagnosis should prompt careful assessment of the person and the particular decision, rather than assumptions.
Bring existing documents to your appointment. Tell your solicitor about changed relationships, concerns about the proposed attorney or pressure from another person. Explain what you want to achieve in your own words and ask questions before signing.
Your Will, enduring power of attorney and Advance Care Directive address different needs. A Will deals with your estate after death. A South Australian power of attorney deals with legal and financial matters while you are alive. An Advance Care Directive concerns future health care, accommodation and personal decisions.
The Office of the Public Advocate’s guidance also explains why the way multiple attorneys are appointed matters. Ask for advice on your existing wording before assuming a remaining attorney can act alone.
| Document | Main purpose | When it matters |
|---|---|---|
| Enduring power of attorney | Legal and financial authority | During life, according to its terms, including incapacity |
| Advance Care Directive | Future health care, accommodation and personal decisions | When you cannot make the relevant decision |
| Will | Instructions for your estate | After death |
If someone cannot manage their financial affairs and no suitable authority is available, SACAT may be asked to appoint an administrator. It is not automatic that every family needs an order, or that a spouse will be appointed. The person’s circumstances, existing arrangements and the decisions that need to be made are relevant.
SACAT’s administration information explains the process and links to alternatives, applications and administrator obligations. If the issue is already urgent, explain the deadline when seeking advice and provide any existing appointment documents.
Ask where the original documents should be kept, who should know their location, and what copies institutions may require. A useful appointment should leave you understanding who may act, when they may act and what practical steps remain.
No. Marriage does not automatically appoint your spouse to manage your legal and financial affairs. An enduring power of attorney can give your chosen person authority, subject to its terms.
It depends on the document. It can take effect immediately or only during periods of legal incapacity. Check its commencement wording before anyone acts under it.
You must have the legal capacity required to understand the nature and effect of the document when making it. If capacity is uncertain, obtain legal advice about assessment and the available options.
An application to SACAT for an administration order may be needed. Existing arrangements and the decisions required should be assessed first. A spouse is not automatically appointed as administrator.
A South Australian power of attorney concerns legal and financial affairs. An Advance Care Directive is the separate planning document for future health care, accommodation and personal decisions.
No. The authority ends when the person who made it dies. Their estate must then be dealt with through the appropriate estate administration process.
For a broader discussion of joint accounts, multiple attorneys, safeguards and reviewing your documents, read Enduring Power of Attorney in SA: 10 Checks for Couples.
PA Law helps clients prepare and review enduring powers of attorney. Based in Evanston South, we assist people in Gawler, Adelaide and across South Australia.
Tell us whether you are planning ahead or dealing with an immediate difficulty, and mention any deadline. We can discuss the documents to provide, appointment availability and the proposed work and costs.
General information about South Australian law only, not legal advice. The appropriate arrangements depend on your circumstances and documents. Obtain advice tailored to your situation.