Enduring Power of Attorney in South Australia: The One-Witness Rule

In South Australia, an enduring power of attorney is made by deed under the Powers of Attorney and Agency Act 1984 and needs only one attesting witness authorised to take affidavits, not the two witnesses many people assume.

What South Australia calls it and what it covers

South Australia's Powers of Attorney and Agency Act 1984 uses the older terms donor and donee. An enduring power of attorney made under the Act covers financial and legal matters only, and unlike some jurisdictions it is created by deed, a specific legal formality, rather than simply an instrument or form. Health and personal decisions sit in a separate document, an Advance Care Directive under the Advance Care Directives Act 2013. See the enduring guardianship and health decisions guide for how personal and health decision making works across Australia, and the national enduring power of attorney guide for what an EPA is generally and how the states compare.

Making one: the one-witness rule

This is the fact most worth getting right. Section 6(2)(a) of the Act requires that the deed's attesting witness, or, if there is more than one, at least one of them, be a person authorised by law to take affidavits, such as a Justice of the Peace or a solicitor. That is a minimum of one qualifying witness, not two. Additional witnesses are permitted but not required. South Australia and New South Wales are the two Australian jurisdictions that need only a single prescribed witness; do not rely on the older, more common assumption of two witnesses for South Australia.

Section 6(2)(b) adds a second execution requirement: the deed must have a statement of acceptance, in the Schedule 2 form, endorsed or annexed and executed by the donee. The Act itself does not appear to set out a separate age or capacity eligibility test for the donee, unlike some other states' Acts, which may mean this is governed by general capacity law rather than the Powers of Attorney and Agency Act.

When it starts operating

Under section 6(1), an EPA can be created either expressed to be made under this section, or with words showing an intention that the donee's authority continues notwithstanding, or comes into force on, the donor's later legal incapacity. Section 6(3) confirms that anything the donee does during the donor's incapacity is as effective as if the donor were still competent. South Australia's Act does not set up a tribunal or court declaration as a precondition to the power operating; once the incapacity condition in the deed is met, it takes effect on its own terms.

Registration

South Australia has the leanest registration framing of any state researched for this cluster. Nothing in the Powers of Attorney and Agency Act 1984 requires an EPA to be registered, either for it to be valid or before it can be used for a land dealing. The one land related cross-reference in the Act, section 12(5)(a), simply notes that a third party protection provision does not affect section 160 of the Real Property Act 1886, South Australia's Torrens land title statute. Any registration mechanics for a land dealing sit entirely in the Real Property Act and are handled through the Lands Titles Office, not through the power of attorney legislation itself.

Attorney duties, conflicts and gifts

Section 7 requires the donee, while the donor is incapacitated, to exercise their powers with reasonable diligence to protect the donor's interests, and makes the donee liable to compensate the donor for loss caused by failing to do so. Section 8 makes it an offence to fail to keep and preserve accurate records and accounts, with a penalty of up to 1,000 dollars, a fixed figure that has apparently never been updated since the Act's 1984 era and stands out as notably low next to comparable penalties in other states. Section 9 prevents a donee from renouncing the power during the donor's incapacity without the Supreme Court's permission.

As with Western Australia, South Australia's Act does not contain a gift-giving provision at all. New South Wales, Victoria, Queensland, Tasmania and the Northern Territory each regulate a donee's gift-making authority in some form; South Australia's Powers of Attorney and Agency Act simply does not.

Ending or changing an EPA

Section 10 addresses what happens if a committee, an administrator under the Mental Health Act 1977, or a manager under the Aged and Infirm Persons' Property Act 1940 is appointed over the donor's estate. The donee becomes accountable to that person as if they were the donor, and that person gains the same power the donor would have had to vary or revoke the EPA. Section 11 lets the Supreme Court, on application by an interested person, order the donee to file or serve records, have records audited, or revoke or vary the EPA or appoint a substitute donee; the donee can also apply for such an order or for directions.

South Australia's Act has no marriage or divorce trigger for revocation either, the same gap found in Western Australia's Act.

Instruments made in other states

Section 14 sets out South Australia's recognition regime for interstate enduring powers of attorney, and it is the most detailed automatic-recognition model covered in this research. An interstate EPA has effect in South Australia as if it had been made under South Australia's own Act, but only to the extent its powers could validly have been given by an SA EPA in the first place, and subject to any limitation that applied under the law of the state or territory where it was made. Certain kinds of interstate power of attorney can be excluded from recognition by regulation, though which categories are currently prescribed was not confirmed in the research behind this page.

Section 14 also creates a practical shortcut. In any proceeding, a certificate from a legal practitioner who is admitted and currently practising in the state or territory where the interstate EPA was made, certifying that it met that jurisdiction's formal requirements, is admissible evidence and, unless contrary proof is given, is proof of what it certifies. This mechanism was inserted by the Powers of Attorney and Agency (Interstate Powers of Attorney) Amendment Act 2013.

Official forms and disputes

The forms used for a South Australian enduring power of attorney, a general power of attorney form in Schedule 1 and the EPA acceptance form in Schedule 2, are set out directly in the Act rather than published as separate downloadable forms the way some other states do. No registration fee applies, because there is no registration requirement. Disputes over a South Australian enduring power of attorney, including applications to compel record keeping or to revoke or vary the power, go to the Supreme Court under section 11. If you are instead dealing with someone's estate after death rather than planning ahead, see the South Australia probate guide. For other estate planning steps, see the making a will in Australia guide.