Enduring Power of Attorney (P2)

Section 6 of the Powers of Attorney and Agency Act 1984 (SA) lets a person (the donor) create an enduring power of attorney by deed that continues, or takes effect, if they later lose legal capacity. It is only effective if at least one attesting witness is a person authorised by law to take affidavits, and a statement of acceptance is endorsed on or annexed to it, signed by the attorney (s 6(2)). Under sections 155 and 156 of the Real Property Act 1886 (SA), a power of attorney used to deal with land under that Act must be deposited, as a duplicate or attested copy, at the Lands Titles Registration Office, and the Registrar-General compares the original with the copy before depositing it. Land Services SA says the power must be lodged before an attorney can deal with South Australian land for the donor.

When you need it

• You want someone to be able to sell, transfer, mortgage or lease your South Australian land if you lose capacity, or from now on.
• An attorney under an existing enduring power now needs to sign a land dealing and the power has not yet been deposited.
• You want the form checked while you can still correct or re-sign it, by lodging it before it is needed.

1. 1

   Donor and donees

   Give the donor's full name and current address, then each donee's (attorney's) full name and current address. Strike through 'jointly' or 'jointly and severally', whichever does not apply.

2. 2

   When the power operates

   Strike through the option that does not apply: effective from execution and continuing despite later incapacity, or effective only if the donor later loses capacity.

3. 3

   Conditions, limitations or exclusions

   Set out any limits on the attorney's authority. If there are none, write 'Not applicable'.

4. 4

   Execution as a deed

   The donor dates and signs as a deed in the presence of a witness who is a person authorised by law to take affidavits (s 6(2)(a)).

5. 5

   Acceptance

   Each donee writes their full name, signs the form of acceptance and dates it, acknowledging the power is enduring and that they are subject to the Act (s 6(2)(b)).

• Lodge at least one original and one photocopy. The original is compared with the copy (Real Property Act 1886 s 156(3)), the copy is deposited, and the original is returned by registered post.
• Lodge in person at Land Services SA, Level 9, 101 Grenfell Street, Adelaide (office hours 9am to 5pm) or by post to GPO Box 543, Adelaide.
• A registration fee applies for each donor; check Land Services SA's current fees page. A Confirmation of Registration notice is sent to the lodging party's email address.

• Several donors can sign one document, but each donor creates a separate power of attorney needing its own number and fee.
• During any period of the donor's incapacity the attorney must act with reasonable diligence to protect the donor's interests (s 7), must keep accurate records and accounts (s 8) and cannot renounce the power without the Supreme Court's permission (s 9).
• If a deposited power is revoked, the revocation must also be lodged with Land Services SA (Real Property Act 1886 s 157).