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Legal Services

A free legal service was previously offered to COTA SA members; this included free advice on general legal matters from a solicitor who can also take instructions for basic Wills, Enduring Power of Attorney and Advanced Care Directives.

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This service is no longer available as of May 30 2022

Content has been left active for general information purposes - please contact a solicitor directly for information specific to your situation.

You can get more information and advice from the Legal Services Commission.


It is of the utmost importance that everyone has a Will which has been professionally prepared and up to date. Making a professionally prepared Will is the best way to ensure that your property is disposed of in accordance with your wishes and minimising any issues that may occur after your passing. By not making a Will, your property will be disposed of in accordance with State legislation, which may not be as you would have intended.

Should a Will be prepared by a Solicitor?

The short answer is, yes. The practice of writing your own Will or using a 'kit' is a false economy and can lead to additional costs at the time of your passing due to ambiguous wording, improper witnessing, being incomplete and different coloured pens being used.

This usually means additional costs are incurred to fix these issues (which are usually more than the cost of having the will prepared professionally in the first place) and may lead to unfortunate family disputes and even court litigation.

What should I consider when naming an executor?

An executor is the person(s) responsible for carrying out your wishes and is an important consideration when preparing a Will. You can name a trusted friend or family member, a trustee company, or solicitors. Your Will should also consider the 'what if...' someone you have named has passed on before you and what to do in those circumstances as regards the executor or substitute beneficiary.

Advance Care Directive

There may come a time when you are unable to make a decision or properly communicate your wishes on how you would like to be cared for or treated.

An Advance Care Directive replaces Enduring Powers of Guardianship and Medical Powers of Attorney with a single document. It enables one or more people who you nominate (called 'Substitute Decision Makers) to carry out your wishes if for any reason you cannot communicate them.

This will give peace of mind knowing that your wishes will be followed if you become mentally incapacitated, unable to communicate due to a medical condition e.g., a stroke or are in the final stages of a terminal illness.

What does a person nominated in an Advance Care Directive do?

When you nominate a person or persons in your Advance Care Directive it means that you give them the authorisation to follow your directions for the type of care you want. It is therefore important to choose someone who you trust absolutely as capable of carrying the responsibility entrusted to them. You can do these documents yourself either online or by purchasing a kit at Service SA.

Enduring Power of Attorney

This is a document by which you appoint another to represent you or act in your stead for the purpose of handling your financial and property affairs. This power does not cease upon legal incapacity (as a General Power of Attorney does) but endures so that the person appointed may continue to act on behalf of the donor of the power.

When is an Enduring Power of Attorney required?

This is a very significant document. An example of its importance is where it becomes necessary to sell the home of an incapacitated person so that he/she can move into a nursing home or to access bank accounts to ensure bills are paid properly.

What happens if there is no Enduring Power of Attorney in place?

If there is no Enduring Power of Attorney in place there is no automatic right for a spouse or family member to act on your behalf which may lead to difficulties in your affairs being managed. It may then be necessary for a family member to obtain either a Supreme Court Order (at considerable expense) or apply to SACAT (South Australian Civil and Administrative Tribunal) to have an administrator appointed.

What should be considered in nominating an Enduring Power of Attorney?

As it is such a powerful document, care must be taken in deciding who to appoint in the role as attorney, how and when they are to act and whether any conditions should be imposed. Again, it is better that this is prepared professionally so that you can be fully advised, and a document tailored to your specific needs as many 'kit' forms are incorrectly completed and are not suitable in all circumstances.

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