Do I Need an Enduring Power of Attorney?

What Happens If You Lose Capacity Without One

By Rebekah Griffith, Batt Griffith Legal

Most of us plan for what happens after we die. Fewer plan for what happens if we lose the capacity to manage our own finances or make our own medical decisions while we are still alive, whether temporarily or permanently through an accident, a stroke, dementia or another serious illness. Two documents deal with exactly that situation: an enduring power of attorney (an EPA) for financial and legal decisions, and an advance care directive (an ACD) for medical, housing and other personal decisions. Here are the questions clients most often ask us about whether they actually need either one.

Do I actually need an EPA or an ACD?

No. There is no legal requirement to put an EPA or an ACD in place. If you never get around to it and later lose the mental capacity to manage your own affairs or make your own decisions, existing law, and the South Australian Civil and Administrative Tribunal (SACAT) or Court, step in to decide who acts for you. In that narrow sense, neither document is compulsory.

What that fallback framework cannot do is let you choose, in advance, exactly who makes decisions on your behalf, when their authority starts, and what limits apply to it. As the questions below show, it can also be slower, more public, and more likely to place a stranger, rather than someone you know, in control of your affairs. If you want a say in who looks after your finances and your health while you cannot look after them yourself, an EPA and an ACD are well worth putting in place, and worth reviewing whenever your circumstances or wishes change.

What is an enduring power of attorney?

An enduring power of attorney, or EPA, lets you appoint one or more trusted people, called your attorneys, to make legal and financial decisions on your behalf. This means they can essentially do you could legally do yourself, including operating your bank accounts, paying your bills, managing your investments, and buying or selling property.

If you appoint more than one attorney, you need to decide whether they must make every decision together, or whether they can act independently. You can also name a backup attorney or attorneys to step in if your first choice is unable or unwilling to continue in the role.

When does my EPA take effect?

You can choose. Some clients want their EPA to operate immediately once signed, which can be useful if you travel often or simply want help managing your affairs day to day. Others prefer it to take effect only if and when they lose capacity to make financial decisions for themselves. Either way, once it is in force, an EPA remains effective even if you go on to lose capacity, and continues until you revoke it or until you die, at which point your executor takes over instead.

Who should I appoint, and what about conflicts of interest?

Choose someone you trust completely, who is organised, and who will act in your interests rather than their own. Ideally, they would be a skilled communicator who can communicate with your other loved ones, who may not be appointed for various reasons, with respect and diplomacy.

What is an advance care directive?

An advance care directive, or ACD, is the health and lifestyle equivalent of an EPA. It lets you appoint one or more substitute decision-makers to make medical treatment, housing and other personal decisions on your behalf if you become unable to make them yourself, and to record your own wishes and values to guide those decisions. You can also include a binding refusal of specific types of health care, which both your substitute decision-maker and your treating clinicians are legally required to follow.

You can appoint more than one substitute decision-maker, and you need to decide whether they must make decisions together or whether they can act independently, along with any backup appointment in case your first choice becomes unable to act.

It is worth remembering that none of this affects your own right to make your own decisions while you have capacity. If you are 16 years or older and have decision-making capacity, you always have the right to consent to or refuse your own medical treatment, and no one else, not a spouse, not a substitute decision-maker, can override that. The following applies only if you no longer have that capacity.

What happens if I do not have an EPA?

If you lose capacity without a valid EPA in place, nobody automatically has authority to manage your finances, not even your spouse or your adult children. Bills cannot be paid, bank accounts in your sole name cannot be accessed, and property cannot be sold to fund aged care fees, despite your ongoing financial needs. Instead, your family will need to apply to SACAT for an administration order.

SACAT generally prefers to appoint someone who knows you well, such as a family member. However, if there is conflict between family members, or the Tribunal does not have confidence in a family member's ability to manage your affairs appropriately, it can instead appoint the Public Trustee of South Australia as administrator, which charges fees for managing your financial affairs, paid out of your own estate.

SACAT will generally hold a hearing or hearings to determine who should be appointed, require them to report to the Public Trustees office each financial year for oversight into their financial management and to hold a hearing or multiple hearing/s to review the decision every 1 – 3 years. If there is no agreement between the family about who should be appointed, these can become contentious legal proceedings.

What happens if I do not have an ACD?

Different rules apply depending on what kind of decision needs to be made.

For immediate medical treatment decisions, if you no longer have capacity and have not appointed a substitute decision-maker in an ACD, the law requires clinicians to seek consent from whoever is next available, in this order of priority: your spouse or domestic partner, provided the relationship is close and continuing; otherwise an adult relative, or a person recognised as a relative under Aboriginal or Torres Strait Islander kinship rules, who has a close and continuing relationship with you; otherwise a close adult friend; and, failing all of the above, whoever is responsible for your day-to-day care, provided they are not a paid carer. Whoever is asked to decide is legally required to practise substitute judgment, meaning they cannot simply choose what they would want; they must make the decision they honestly believe you would have made for yourself.

For broader, ongoing decisions about where you live and how you are cared for, if none of the people above are available, willing or considered suitable, or agreement cannot be reached, someone will need to apply to SACAT for a guardianship order. As with financial administration, SACAT can appoint a family member or, where there is conflict or a lack of confidence in the family, the Office of the Public Advocate.

In short, without an ACD, decisions about your health, your housing and your care can end up being made by whoever the law says is next in line, and, in some cases, by people you have never met rather than the people you would have chosen yourself.

What happens if I have older documents

If you have documents made many years ago, including a Medical Power of Attorney (Which was replaced by the Advance Care Directives in 2015), as long as they were validly completed at the time that they were signed, then they are legally valid documents and do not necessarily need replacing unless your wishes change or you want to add more detail or limits to the responsibility provided in the documents.

The common thread

As with a will, neither an EPA nor an ACD is legally required. The law already has a fallback position for both your finances and your health. But that fallback position is generic, can be slow to activate, since a SACAT application takes time while your bills and care needs will not wait, and can hand control of your affairs to family members you would not have chosen, or to a public official who charges a fee, rather than to someone you know and trust. Putting an EPA and an ACD in place lets you decide, while you still can, exactly who will act for you, when their authority starts, and what they can and cannot do, sparing your family the cost, delay and uncertainty of working it out for themselves. If you do not already have these documents in place, or have not reviewed them in some years, it is worth making an appointment with your local solicitor.

This article is general information only, current as at September 2026, and is not legal advice. It does not take into account your personal circumstances. If any of the issues raised here apply to you, seek advice from us.