Enduring Power of Attorney

An Enduring Power of Attorney is much the same in effect as a General Power of Attorney; however, the instrument must provide that such power will continue to be effective despite the principal lacking capacity through loss of mental capacity after execution of the instrument.

In the creation and execution of such an instrument, there are a number of requirements that must be adhered to and set out in s.19 (1) of the Powers of Attorney Act 2003, as follows –

First, the instrument itself must be expressed to continue to be effective despite lack of capacity through the principal’s loss of mental capacity after the execution of the instrument.

Secondly, the execution of the instrument must be witnessed by a ‘prescribed witness’ (not being the attorney) who certifies:

  • the witness explained the effect of the instrument to the principal before it was signed;
  • that the principal appeared to understand the effect of the power of attorney;
  • that the witness is a prescribed witness;
  • that the witness is not an attorney under the power of attorney; and
  • that such witness witnessed the signing of the power of attorney by the principal.

With regards to Enduring Power of Attorney, what is a “prescribed witness”?

A prescribed witness, includes among other classes of persons, a barrister or solicitor of a court of any State or Territory of the Commonwealth or registrar of a Local Court.

Upon execution of the instrument by the principal and witness, the attorney must accept the appointment by signing the instrument creating the power.

For more information, contact a Solicitor at Proctor & Associates now, to assist and advise you with your inquiry.

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