Queensland Consolidated Acts
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POWERS OF ATTORNEY ACT 1998 - SECT 42
Principal’s capacity to make an advance health directive
42 Principal’s capacity to make an advance health directive
(1) A principal has capacity to make an advance health directive, to the
extent it does not give power to an attorney, only if the principal—
understands the nature and effect of the advance health directive; and
capable of making the advance health directive freely and voluntarily.
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 advance health directive includes understanding the following
(a) the nature and likely effects of each direction in the advance
(b) a direction operates only while the principal has
impaired capacity for the matter covered by the direction;
(c) the principal
may revoke a direction at any time the principal has capacity for the matter
covered by the direction;
(d) at any time the principal is not capable of
revoking a direction, the principal is unable to effectively oversee the
implementation of the direction.
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 the principal understood
(3) A principal has capacity to make an advance health
directive, to the extent it gives power to an attorney, only if the principal
has the capacity necessary to make an enduring power of attorney giving the
See section 41 in relation to the capacity of a principal
to make an enduring power of attorney.
(4) For this section, schedule 3 ,
definition capacity does not apply.
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