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POWERS OF ATTORNEY ACT 1998 - SECT 41
Principal’s capacity to make an enduring power of attorney
(1) A principal has capacity to make an enduring power of attorney only if the
principal— (a) is capable of making the enduring power of attorney freely
and voluntarily; and
(b) understands the nature and effect of the enduring
power of attorney.
Note— Under the general principles, an adult is
presumed to have capacity. See section 6C , general principle 1.
(2)
Understanding the nature and effect of the enduring power of attorney includes
understanding the following matters— (a) the principal may, in the power of
attorney, specify or limit the power to be given to an attorney and instruct
an attorney about the exercise of the power;
(b) when the power begins;
(c)
once the power for a matter begins, the attorney has power to make, and will
have full control over, the matter subject to terms or information about
exercising the power included in the enduring power of attorney;
(d) the
principal may revoke the enduring power of attorney at any time the principal
is capable of making an enduring power of attorney giving the same power;
(e)
the power the principal has given continues even if the principal becomes a
person who has impaired capacity;
(f) at any time the principal is not
capable of revoking the enduring power of attorney, the principal is unable to
effectively oversee the use of the power.
Note— If there is a reasonable
likelihood of doubt, it is advisable for the witness to make a written record
of the evidence as a result of which the witness considered that the principal
understood these matters.
(3) For this section, schedule 3 , definition
capacity does not apply.
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