Victorian Consolidated Legislation

Instruments Act 1958 - SECT 118

When does a donor have capacity to make an enduring power of attorney?

118. When does a donor have capacity to make an enduring power of attorney?



(1) A donor may make an enduring power of attorney only if the donor
understands the nature and effect of the enduring power of attorney.

(2) Understanding the nature and effect of the enduring power of attorney
includes understanding the following matters-

   (a)  that the donor may, in the power of attorney, specify conditions or
        limitations on, or instructions about, the exercise of the power to be
        given to the attorney;

   (b)  when the power is exercisable;

   (c)  that once the power is exercisable, the attorney has the same powers
        as the donor had (when not under a legal incapacity) to do anything
        for which the power is given subject to any limitations or
        restrictions on exercising the power included in the enduring power of
        attorney;



   (d)  that the donor may revoke the enduring power of attorney at any time
        the donor is capable of making an enduring power of attorney;

   (e)  that the power the attorney is given continues even if the donor
        subsequently ceases to have legal capacity;

   (f)  that at any time that the donor is not capable of revoking the
        enduring power of attorney, the donor is unable to effectively oversee
        the use of the power.

Note It is advisable for the witness to make a written record of the evidence
as a result of which the witness considers that the donor understands these
matters.