An EPA is a document that derives its power and authority from section 6 of the Powers of Attorney and Agency Act 1984 (SA), which permits the creation of a power whose authority endures through the donor’s later legal incapacity.

The statutory source matters because it reverses the common law. At common law an agent’s authority terminates on the principal’s incapacity; section 6(3) is the provision that alone preserves the donee’s authority through that incapacity.

An ordinary or general power of attorney under section 5 of the Act does not survive incapacity. The formal requirements of an EPA are that it be made by deed either expressed under section 6 or containing the enduring words; that at least one attesting witness be a person authorised by law to take affidavits (section 6(2)(a)); and that the donee execute a statement of acceptance in or to the effect of the Schedule 2 form (section 6(2)(b)).

An EPA governs financial, property and legal affairs only.  In modern society, it is very common for people to become mentally or physically infirm in old age, and an EPA allows someone they trust to pay bills, organise the sale of assets and protect them from being taken advantage of.

It cannot confer authority over health, residential or personal-lifestyle decisions, which belong to the ACD regime. The attorney’s authority carries duties: during the donor’s incapacity the attorney must exercise the power with reasonable diligence to protect the donor’s interests.

It is also more than doing what is in a persons best interests, it is having to do what they would have done should they have faced the same choices.