April 2026 - Matti Lamb & Associates

Enduring powers of attorney explained

A lot of people have heard of a Power of Attorney; however, most do not fully appreciate the extent of its power, the benefits it can deliver or the types of Powers of Attorney that exist.

In this article we examine why appointing a Power of Attorney is often recommended by lawyers and explain the difference between a General Power of Attorney and an Enduring Power of Attorney. The information relates to South Australian law and is not a substitute for legal advice. For advice tailored to your specific circumstances, please consult an experienced legal professional.

Power of Attorney – overview

A Power of Attorney is a useful legal document used to allow someone to handle your financial and legal affairs in a variety of circumstances. It is often used if you are planning to go overseas, taking an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need greater assistance managing your financial affairs.

Powers of Attorney in South Australia deal with financial and legal decision‑making only, not personal, lifestyle or medical decisions. Separate documents, such as an Advance Care Directive and guardianship arrangements cover personal, lifestyle or medical decisions.

Selecting a person to act in your place

The appointment of your Attorney enables that person (or people) to act in your place and do certain things you would normally do yourself, such as signing documents, paying bills and banking. The person you choose has the right to stand in your shoes and make decisions regarding your financial and legal affairs.

Given the power of such an appointment, it is critical that you select the right person to act in that capacity. The person does not have to be a lawyer. It is important for the person to know you well and for you to trust them. It is often a trusted family member, but whoever it is must be over 18 years and have the ability to manage financial matters responsibly.

The difference between a General and an Enduring Power of Attorney

Not all Powers of Attorney are the same.

A General Power of Attorney is a legal document that gives the Attorney the authority to act on certain financial and legal matters on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has legal capacity. The general power ceases to operate if the person that has made the Power of Attorney loses capacity to make decisions. A General Power of Attorney is often used as a tool of convenience. For example, a person might appoint a General Power of Attorney to look after their financial and legal affairs in Australia while they travel overseas.

An Enduring Power of Attorney is similar, except that the power continues, or “endures”, in the event the donor (the person making the power) later loses legal capacity, provided the document is made in the correct enduring form.

In South Australia, an Enduring Power of Attorney must be made in the prescribed form and properly witnessed by an authorised witness (for example, a legal practitioner or Justice of the Peace), who should be satisfied that you understand the nature and effect of the document before you sign it.

It is important to be aware that an Enduring Power of Attorney becomes void when you die. At that point, control of your estate passes to your executor or, if there is no will, to an administrator appointed by the court.

When does the Attorney’s power begin?

You may nominate when your Attorney’s power is to begin. If you do not name a date or an occasion, it generally begins immediately once the document has been properly signed and witnessed.

Alternatively, you can specify that an Enduring Power of Attorney is only to take effect if you later lose legal capacity, for example after a doctor confirms that you can no longer manage your financial affairs and make financial decisions.

It is important to note that even if you give your Attorney power immediately, you may also continue to make decisions yourself while you are able to do so. By providing a Power of Attorney you do not restrict or give up the right to make financial decisions as you do today, unless and until a tribunal or court orders otherwise.

You may revoke a General or Enduring Power of Attorney at any time while you still have legal capacity, by signing a revocation document and notifying your attorney and relevant institutions (such as banks) of the revocation.

What happens if you lose capacity without having a Power of Attorney?

The probability that someone can lose capacity is often not considered. However, if you become legally incapacitated and are unable to manage your financial affairs and no longer understand the effect of an Enduring Power of Attorney, it will be too late to have a lawyer prepare one.

No one has an automatic general right to manage your assets if you lose capacity, even a husband or wife, beyond what they can do in their own name or under existing joint arrangements. This can have a significant effect on financial decision‑making with respect to your bank accounts, home, shares or other jointly owned assets or liabilities.

To have decisions made in these circumstances usually involves an application to the South Australian Civil and Administrative Tribunal (SACAT) for an administration order.

The applicant, usually a family member, would apply to become your financial administrator. This is subject to that person being considered a suitable (“fit and proper”) person to manage your affairs. If no suitable person is available, or in some cases even where there is a willing family member, SACAT may instead appoint the Public Trustee or another appropriate administrator to manage your affairs.

If the Public Trustee is appointed, your spouse or other family members may need to consult with a government agency to deal with your ongoing financial affairs until your death, and fees may be charged for this service.

SACAT or an administrator appointed by SACAT can, in some circumstances, vary or revoke an existing Enduring Power of Attorney if that is in your best interests.

Summary

Today Powers of Attorney are often used as a precautionary step by sensible adults, not just a stop‑gap measure for an overseas trip. Professionals such as accountants, financial planners and lawyers often recommend that their clients of all ages and walks of life make a Power of Attorney to ensure their assets are not effectively locked up if they lose legal capacity and to minimise stress on their loved ones.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Common mistakes to avoid when buying property

Buying or selling a home is one of the biggest financial decisions you’ll ever make. While it’s an exciting time, the legal side of the process, known as conveyancing, can be complex and full of potential pitfalls. A simple mistake can lead to costly delays or even a collapsed deal.

Knowing what to look out for is the best way to ensure your property transaction goes smoothly. Here are some common conveyancing mistakes people make and some practical tips on how to avoid them.

1. Not Getting Your Finance Sorted Early

This is a mistake that can derail a purchase before it even begins. Many buyers get caught up in the excitement of finding their dream home and make an offer without having a solid loan pre-approval in place.

The Problem: Your offer might be accepted, but if your finance falls through later, you could lose your initial deposit and face penalties for breaching the contract. In some cases, a contract becomes unconditional as soon as it’s signed, especially in an auction setting where there is no cooling-off period. If you can’t secure the funds, you’re in a very difficult position.

How to Avoid It: Before you start seriously looking for a property, speak with a mortgage broker or your bank to get a formal loan pre-approval. This gives you a clear budget and allows you to make offers with confidence. If necessary, talk to your conveyancer or lawyer about adding a “subject to finance” condition in the contract.

2. Skipping the Due Diligence

The phrase “let the buyer beware” is a core principle when it comes to buying property. This means it’s your responsibility to be satisfied with the property before you buy it. Skipping crucial checks to save a little money can be a very expensive mistake in the long run.

The Problem: You might buy a home only to discover serious hidden issues, like a major termite infestation, a cracked foundation, or illegal building works that need to be torn down. These issues can be incredibly costly to fix and can significantly reduce the property’s value.

How to Avoid It: Checking zoning regulations and building compliance, verifying property boundaries, and arranging professional building and pest inspections all form part of the due diligence process. For apartments, townhouses, or units, a strata report is essential to uncover any issues with the body corporate, such as large debts or upcoming special levies for major repairs. Your conveyancer or property lawyer will also conduct essential searches, such as checking the title for easements, covenants, unpaid rates, or undisclosed interests from government authorities.

3. Misunderstanding the Contract of Sale

A standard contract of sale is a comprehensive legal document, often filled with complex terms and special conditions. Many people sign it without fully understanding what they’re agreeing to.

The Problem: You could be locked into a contract that has conditions you don’t agree with or that puts you at a disadvantage.

How to Avoid It: Never sign a contract of sale without a professional review. The role of your conveyancer or lawyer is to read every clause and explain your obligations in plain language. They will identify potential risks and can sometimes negotiate with the seller’s representative to have unfair clauses removed or amended before you sign.

4. Leaving Things to the Last Minute

Conveyancing has strict deadlines and a specific sequence of events. Delays in one area can cause a domino effect, pushing back settlement and potentially costing you money.

The Problem: Failing to sign a document or pay the deposit on time can jeopardise your purchase. Similarly, if you don’t coordinate with your bank, you could miss the settlement date, resulting in costly penalty fees or, in more severe cases, contract termination and consequential legal action.

How to Avoid It: Stay organised from the get-go. As soon as you have a signed contract, provide all necessary documents to your conveyancer and lender promptly. Keep an open line of communication with all parties involved and respond to requests for information as quickly as possible.

5. DIY Conveyancing

DIY conveyancing has become even more complex with the advent of electronic conveyancing, which is effectively a closed system where only accredited entities can participate. Doing your own conveyancing is not a decision to be taken lightly. The process is full of legal complexities and risks that can be difficult for someone without legal training to navigate.

The Problem: You could miss a critical search, fail to identify a problematic clause in the contract, or make a technical mistake on a legal document.

How to Avoid It: Engage a reputable licensed conveyancer or a property solicitor. Their fees are a small price to pay for the peace of mind that comes from having an expert on your side who is insured and has a deep understanding of the legal requirements for property transactions.

Key Takeaways

Sort out your finances first. Get pre-approval before you start shopping.
Do your research. A building and pest report is a non-negotiable step.
Get expert advice. Don’t sign a contract until a professional has reviewed it.
Stay on top of deadlines. Timely communication and organisation are key.
Don’t DIY. A qualified conveyancer or property solicitor is a vital part of your team.

By being proactive and seeking professional guidance, you can navigate the conveyancing process with confidence and avoid these common and often costly mistakes.

Where do the children live after a family breakup? Negotiating parenting plans

Separation and divorce are a reality for many Australian couples. When children are involved, the impact on the family can make the aftermath of a breakup even more overwhelming. Parents will often be anxious about how children’s care arrangements will play out immediately after separation, and in the long term.

Making a parenting plan that outlines where the children will live and how parents will share responsibilities is a step that parents can take to help provide clarity and minimise additional stress and anxiety.

What is a Parenting Plan?

A parenting plan is a written agreement between separated parents that outlines how they will raise their children moving forward. It’s a roadmap for co-parenting, detailing where the children will live, who makes decisions about their upbringing, how parents will communicate about important issues regarding their children, and how they will resolve disputes. While parenting plans are not legally required or binding, they can help provide stability and structure for children after separation. Parenting plans can also be made into legally binding consent orders by application to the court.

Key Components of a Parenting Plan:

Living arrangements: This is often the most contentious aspect. Options include:
Primary residence: One parent becomes the primary caregiver, and the children live with them most of the time. The other parent has regular contact, such as weekend visits, holidays, and special events.
Shared care: Children spend significant time with both parents, often on a near-equal basis. This could involve week-on-week-off arrangements or more complex schedules.
Birdnesting: Less common, this involves the children staying in the family home, and the parents taking turns moving in and out.
Decision-making: The plan outlines who is responsible for major decisions regarding the children’s lives, such as education, healthcare, and religious upbringing. This can be shared equally or allocated to specific parents for different areas.
Communication and dispute resolution: A good plan includes strategies for effective communication between parents and mechanisms for resolving disagreements, such as mediation or counselling.

What Does the Law Say?

In most cases, it is best if parents can agree on the post-separation arrangements for their children. If an agreement cannot be reached, they may need to ask a court to determine these issues.

In family law cases, courts decide on the allocation of parental responsibility on a case-by-case basis with the paramount focus being the child’s best interests. In determining what orders to make, the Family Law Act 1975 provides that the court consider some core factors which include:

The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care.
Any views expressed by the child.
The child’s needs, encompassing developmental, psychological, emotional, and cultural aspects.
The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs.
The benefits to the child in having a meaningful relationship with their parents, and people significant to the child.

A court may consider any other factors that it deems relevant to the specific circumstances of the child. Additionally, the court must consider the child’s connection to ‘family, community, culture, country, and language’ when determining what is in the best interests of Aboriginal or Torres Strait Islander children.

*These recently introduced provisions remove the presumption of ‘shared parental responsibility’ which no longer operates. They apply to children in Australia whether or not their parents are, or were married, but not currently to children of unmarried parents in Western Australia. It is, however, anticipated that the Western Australian government will amend legislation so the provisions will apply to children of de facto parents.

Considerations when Negotiating a Parenting Plan

While there is no one-size-fits-all answer to making parenting plans, the children’s best interests, as determined in the Family Law Act, should be paramount. Making a workable parenting plan requires a cooperative approach between parents with the children’s welfare at the forefront of negotiations. A mediator or family dispute resolution practitioner can help parents agree on implementing effective plans that work for everyone. It is important to remember that parenting plans are not set in stone and can evolve as children grow and circumstances change.

Practical considerations when negotiating arrangements for children include:

Child’s age and development: Routines and needs typically change from infants to toddlers through to older children.
Each parent’s capacity to provide care: This includes factors like emotional stability, financial resources, and availability to meet the child’s needs.
Existing routines and attachments: Maintaining continuity in the child’s life, such as schooling, extracurricular activities, and relationships with friends and extended family, is important.
Parents’ work commitments and location: Practical considerations like work schedules and the distance between parents’ homes play a role.
Child’s wishes: Depending on their age and maturity, children’s views and preferences may be taken into account.
Family violence: In cases involving family violence or abuse, the court prioritises the safety and well-being of the child and protective parent.

Making Parenting Plans Work

Creating a parenting plan is just the first step. Successful co-parenting requires ongoing effort and commitment from both parents. In addition to always prioritising the child’s best interests, other practical tips can help.

Communicate effectively: Maintain open and respectful communication with the other parent, even if doing so is challenging.
Be flexible and willing to compromise: Life throws curveballs – parents’ and children’s schedules can change at the last minute. Being willing to accommodate such changes to address unforeseen events is crucial.
Communicate with your children: Try to remain calm and positive when dealing with challenges and changes. How you explain unforeseen events to your children will depend on their age, level of maturity and the circumstances.
Seek professional support: Mediators and family therapists can help parents navigate conflict and develop effective co-parenting strategies.
Review and adjust the plan: Anticipate that parenting plans may need to change and be prepared to renegotiate as your children grow and circumstances change. You may need to review and update the parenting plan to ensure it remains relevant and in the child’s best interests.

Conclusion

Parenting is challenging at the best of times let alone following a separation. Still, it is important to remember that even after separation, both parents play an important part in their child’s life. While it may be tough working out the practicalities of a co-parenting arrangement, it is worth pushing through the difficulties to reach an agreement that is in the best interests of your children.