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POWERS OF ATTORNEY ACT 1998 - SECT 44
Formal requirements
44 Formal requirements
(1) An enduring power of attorney must be in an approved form. Note— An
approved form is a form approved by the chief executive under section 161 —
schedule 3 (Dictionary).
(2) An advance health directive must be written
and may be in the approved form.
(3) An enduring document must— (a) be
signed— (i) by the principal; or
(ii) if the principal instructs—for the
principal and in the principal’s presence, by an eligible signer; and
Note— See section 30 (Meaning of
"eligible signer" ).
(b) be signed and dated by an eligible witness.
Note— See section 31 (Meaning of
"eligible witness" ).
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 the
necessary matters. For a power of attorney—see section 41 and for an advance
health directive—see section 42 .
(4) If an enduring document is signed
by the principal, it must include a certificate signed by the witness stating
the principal— (a) signed the enduring document in the witness’s presence;
and
(b) at the time, appeared to the witness to have the capacity necessary
to make the enduring document.
(5) If an enduring document is signed by a
person for the principal, it must include a certificate signed by the witness
stating— (a) the principal, in the witness’s presence, instructed the
person to sign the enduring document for the principal; and
(b) the person
signed it in the presence of the principal and witness; and
(c) the
principal, at the time, appeared to the witness to have the capacity necessary
to make the enduring document.
(6) An advance health directive must also
include a certificate signed and dated by a doctor or nurse practitioner
mentioned in subsection (7) stating the principal, at the time of making the
advance health directive, appeared to the doctor or nurse practitioner to have
the capacity necessary to make it.
(7) The doctor or nurse practitioner must
not be— (a) the person witnessing the advance health directive; or
(b) the
person signing the advance health directive for the principal; or
(c) an
attorney of the principal; or
(d) a relation of the principal or a relation
of an attorney of the principal; or
(e) a beneficiary under the principal’s
will.
(8) An enduring document is effective in relation to an attorney only
if the attorney has accepted the appointment by signing the enduring document.
(9) In this section—
"nurse practitioner" means a person registered under the Health Practitioner
Regulation National Law to practise in the nursing profession, other than as a
student, whose registration is endorsed as being qualified to practise as a
nurse practitioner.
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