Incapacity

(Protection of Personal and Property Rights Act 1988, s.96)

Unlike an ordinary power of attorney, an enduring power of attorney remains in effect when the donor of the power becomes mentally incapable.

(Protection of Personal and Property Rights Act 1988, ss.97, 98)

An enduring power of attorney for property may take effect before the donor becomes incapable, or after, depending on what the power of attorney prescribes. In contrast, an enduring power of attorney for personal care and welfare only comes into effect upon the donor becoming incapable.

What does mentally incapable mean?

(Protection of Personal and Property Rights Act 1988, s.94)

The donor of an enduring power of attorney is mentally incapable:

in relation to personal care and welfare, if the donor:
- lacks the capacity—
  (i) to make a decision about a matter relating to his or her personal care and welfare; or
  (ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or
  (iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or
  <dir>
  (b) lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare
  </dir>
in relation to property, if the donor is not wholly competent to manage his or her own property affairs.

Who decides if a donor is incapable?

(Protection of Personal and Property Rights Act 1988, s.102)

Before making any decision about a "significant matter" concerning a donors care and welfare, a relevent health professional must certify that the donor lacks capacity to act for themselves. Similar certification is also required where an attorney for property is empowered to act only when the donor loses capacity to act for themselves.

The court can also decide issues as to capacity after looking at:

medical evidence concerning memory, comprehension, the ability to focus on issues and to exercise and express judgment and opinions
the affidavits of family, friends and health professionals who have been in a position to observe the donor

What happens if a person becomes mentally incapable and has not appointed an enduring attorney?

If someone has become incapable of managing his or her own affairs, and has not completed an enduring power of attorney, the Family Court has the power to appoint someone to be that person’s welfare guardian and/or property manager (for information see “Orders under the 3PR Act” in this chapter).

In this situation, a person can apply personally, or someone can apply on his or her behalf, to be placed under a personal order or a property order, or both. An order can only be made where it is absolutely necessary, and any order should not be more than is necessary for the person to live his or her life to the full.