The Powers of Attorney Act 2003 (NSW) (”the Act”) consolidated and modernised the law on powers of attorney. Part 4 ‘Incapacity and Enduring Powers of Attorney’ (spans sections 17-25). Division 2 of Part 4 ‘Enduring powers of attorney’ (spans ss 19-25).
Section 38 – Tribunal Advice and Directions
An attorney under a reviewable power may apply to a tribunal for guidance about their role or the exercise of functions. The tribunal may:
- approve or disapprove a proposed act,
- give advice or directions, or
- vary the effect of the enduring power or make other relevant orders (similar to s 36).
Protection from liability; Attorneys acting in good faith in line with tribunal directions. The applicant submits this application under this section.
Section 17-18 Mental Incapacity and Powers of Attorney
s 17: A power of attorney is not invalid merely because the principal lacked capacity to understand the act when granting it, but the attorney may only act within the powers authorised by the Act.
s 18: A power of attorney remains valid for acts that the principal still understands, even if the principal later becomes incapacitated.
Section 19 – Creation of an Enduring Power of Attorney
An instrument (document) creates an enduring power of attorney under this Act if:
- Intention – the document expresses an intention to remain effective even if the principal later loses decision-making capacity.
- Witnessing – the principal signs the document in the presence of a prescribed witness, who is not an attorney under the instrument.
- Certificate – the prescribed witness either endorses on, or annexes to, the document, a certificate confirming that:
- (i) they explained the effect of the instrument to the principal before the principal signed it;
- (ii) the principal appeared to understand that effect;
- (iii) they are a prescribed witness;
- (iv) they are not an attorney under the power; and
- (v) They witnessed the principal’s signature.
An ordinary power becomes an enduring power if:
- The document states it continues despite the loss of capacity.
- A prescribed witness, specifically a legally qualified professional, can act as a prescribed witness for an EPOA in NSW, and they carry strict obligations to confirm understanding, capacity, and compliance.
- The witness certifies that:
- They explained the effect to the principal,
- The principal appeared to understand,
- They are a prescribed witness,
- They are not an attorney under the instrument, and
- They witnessed the signing.
- A prescribed witness includes an Australian legal practitioner.
Section 21 – Effect of an Enduring Power
s 21(1): Acts done under an enduring power remain effective even if, at the time of the act, the principal lacks understanding due to incapacity.
s 21(2): However, enduring powers have no protection against invalidity for reasons other than incapacity arising after execution.
Re A Power of Attorney [2025] NSWSC 1006
By Amended Summons filed with the Court on 1 September 2025 (with leave), the plaintiff sought the Court’s advice and direction on whether the execution of an instrument (the Instrument)—appointing him attorney of the principal and expressed to remain effective despite any later loss of the principal’s mental capacity—constituted the creation of an enduring power of attorney under the Powers of Attorney Act 2003 (NSW).
The issue concerning the validity of the Instrument arises because, at the time it was executed by the principal and witnessed by the prescribed witness, it did not satisfy the requirement in s 19(c)(iv) of the Act—that a certificate endorsed on, or annexed to, the Instrument must state that the witness is not an attorney under the power of attorney.
Later efforts to remedy this omission occurred after the principal had already lost mental capacity. A further issue is whether those later attempts were effective.
The principal, born in 1942, had capacity when signing, but from October 2022 has suffered from mixed Alzheimer’s and vascular dementia and no longer manages her own affairs.
The instrument met s 19(1)(a)–(b): expressed as enduring and properly witnessed by an independent solicitor. The witness’s certificate satisfied most requirements, but omitted the express declaration required by s 19(1)(c)(iv).
NSW Land Registry Services issued a requisition seeking a verified alteration of the Instrument to rectify the omission. A handwritten insertion correcting the omission was added, not by the witness, but by a solicitor employed by the plaintiff, relying on the witness’s emailed authorisation. The plaintiff wished to sell the principal’s property using the instrument to fund the principal’s care.
Consideration
Compliance with s 19(1) of the Act is mandatory at the time of the instrument’s execution. The wording of s 19 of the Act is in the present tense and demands contemporaneous certification. Allowing later compliance would create uncertainty and potentially validate a power after the principal has lost capacity—contrary to the purpose of the provision.
Even if retrospective certification were possible ex post facto by a prescribed witness, which Hammerschlag CJ in Eq doubted, the prescribed witness did not give the amended certificate. A certificate cannot be provided on behalf of a prescribed witness. Later attempts by the witness to amend the certificate were also ineffective.
“A contrary conclusion would leave open the unpalatable possibility, as would be the case here, that an enduring power of attorney is created at a time when the principal has lost mental capacity to give it.”
Re A Power of Attorney [2025] NSWSC 1006 at [22]
Conclusion
The instrument did not and does not create an enduring power of attorney under the Act. The questions in the Amended Summons were answered No.
The principal did not create an Enduring Power of Attorney under the Powers of Attorney Act 2003