Attorney Duties Power of Attorney South Australia

The Core Obligation: Acting in the Donor's Best Interests

When you accept appointment as an attorney under an Enduring Power of Attorney in South Australia, you take on a fiduciary duty — you must act in the donor's best interests, not your own. This isn't a vague guideline. It's a legally enforceable obligation under the Powers of Attorney and Agency Act 1984, and breaching it can lead to protective intervention, removal from the role through an appropriate legal process, and personal liability for any financial loss.

In practice, acting in the donor's best interests means making the financial decisions the donor would make for themselves, based on their known wishes, values, and circumstances. It doesn't mean making the decisions you think are smartest or most profitable.

Specific Duties Under South Australian Law

Record-Keeping

Under section 6 of the Powers of Attorney and Agency Act 1984, an attorney must keep accurate records of all financial transactions carried out on the donor's behalf. Every payment, transfer, purchase, and sale should be documented with the date, amount, purpose, and any supporting receipts or invoices.

This isn't optional. If a dispute arises — whether during the donor's lifetime or after their death — the attorney should be able to account for every dollar. Without adequate records, it may be difficult to show how the donor's money was used.

No Mixing of Funds

The donor's money must be kept separate from the attorney's personal finances. Don't deposit the donor's pension payments into your own bank account "for convenience." Don't use the donor's credit card for personal purchases with the intention of repaying later. Keep distinct accounts, distinct records, and clear boundaries.

No Self-Dealing

An attorney cannot use their position for personal benefit. You can't buy the donor's property at a discount, lend yourself money from the donor's accounts, or direct the donor's investments into businesses you have an interest in. Even if the transaction would be a good deal for the donor, the conflict of interest makes it impermissible unless the EPA explicitly authorises it.

No Gifts (Unless Authorised)

Unless the EPA specifically permits gift-giving, an attorney cannot make gifts from the donor's assets — not birthday presents to grandchildren, not charitable donations, not loans to family members. This rule catches many well-intentioned attorneys. If the donor always gave $100 to each grandchild at Christmas, the attorney can't continue this practice without explicit authority in the EPA.

If you're setting up an EPA and want your attorney to continue making customary gifts, include a specific gifting clause in the conditions section of Form P2. Define the recipients, the maximum amounts, and the occasions.

Choosing the Right Attorney

Financial Competence

The attorney doesn't need to be an accountant, but they need basic financial literacy. They'll be managing bank accounts, paying bills on time, potentially overseeing investment decisions, and keeping accurate records. Someone who struggles to manage their own finances isn't well-suited to managing someone else's.

Availability

An attorney who lives overseas or travels extensively may not be able to respond quickly when banks need documents signed, bills need paying, or aged care facilities need deposits. The best choice is someone who's reasonably accessible and can attend to matters within a few days.

Trustworthiness

The most important quality, and the hardest to assess objectively. The attorney has access to all the donor's financial assets. The opportunities for misuse are considerable, and detection often comes too late — particularly if the donor has lost capacity and can't oversee what the attorney is doing.

Consider: Has this person demonstrated financial responsibility in their own life? Do they have debts or financial pressures that might create temptation? Are they likely to put the donor's interests first even when it conflicts with their own convenience?

Independence from Family Conflict

If there's any history of family tension — particularly around money or inheritance — an attorney who's caught in the middle of those dynamics may struggle to act impartially. In families with complex relationships, appointing an independent professional (an accountant or trustee company) alongside or instead of a family member can prevent disputes.

What Happens When Things Go Wrong

SACAT Intervention

Any interested person — a family member, a concerned friend, a social worker — can seek protective intervention, including an application to SACAT where an administration or guardianship order is needed, if they believe an attorney is:

• Misusing the donor's money
• Failing to keep proper records
• Making decisions that aren't in the donor's interests
• Neglecting the donor's financial needs

Applications under protective jurisdiction are free to lodge (no filing fee).

Section 11A Post-Death Claims

After the donor dies, will beneficiaries have 6 months from the date probate or letters of administration is granted to apply to the court for compensation from an attorney who misused their position during the donor's lifetime. This means the attorney's conduct is accountable even after the EPA has ceased to operate.

Criminal Prosecution

Serious financial abuse by an attorney — theft, fraud, systematic misappropriation — can have criminal consequences and may be reported to SA Police.

The Schedule 2 Acceptance

Before acting under an EPA, every attorney must sign the prescribed Form of Acceptance using the exact wording from Schedule 2 of the Powers of Attorney and Agency Act 1984. By signing this acceptance, the attorney formally acknowledges their duties and responsibilities.

The South Australia Power of Attorney Kit includes a donee transaction log template, an attorney duties reference sheet, and the conditions and limitations templates that let donors define exactly what their attorney can and cannot do.

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