Each is a statutory creation that does something the general law will not.

The EPA authorises a person to act on a person’s behalf financially and legally and its distinctive feature is survival of incapacity, which only section 6(3) of the Powers of Attorney and Agency Act 1984 supplies; the ACD’s distinctive feature is the conversion of anticipatory wishes and refusals into legally operative provisions binding on health practitioners and substitute decision-makers, which only the Advance Care Directives Act 2013 supplies.

The two instruments are complementary and mutually exclusive: the EPA reaches financial, property and legal affairs and stops there; the ACD reaches health, residential and personal affairs and cannot give a power of attorney. For a person wishing to plan for incapacity, both instruments are needed to cover the field, and neither substitutes for the other.

Having an EPA and ACD is like having insurance, extremely important to have if you need it, but possible you never will.

If there is no EPA and/or ACD, the South Australian Administrative and Civil Tribunal (“SACAT”) can bestow powers of administration and guardianship so that a person is looked after. However, the process can be long and sometimes difficult if there is conflict. A doctor needs to provide a medical report saying that a person has lost their capacity before an application can be filed, and that application needs to be provided to all interested parties.

Interested parties may not always agree who should have the power of administration and guardianship and they will get the opportunity to present their case at the SACAT hearing. Depending on the strength of the cases, agreements and any expert advice, a person may not necessarily be looked after by the person they would have chosen. It can also be far, far more expensive than the cost of an EPA and ACD.