General Law Principles
194The question whether Marjorie had the "mental capacity to make a valid power of attorney" (in particular, the Enduring Power of Attorney executed by her on 27 June 2008) must be determined, subject to the Powers of Attorney Act 2003, by reference to general law principles.
195A customary starting point in identification of those principles is one of two places. First, there is the judgment of the High Court of Australia in McLaughlin v Daily Telegraph Newspaper Co Limited (No 2) (1904) 1 CLR 243 and the unsuccessful application for leave to appeal to the Privy Council from that judgment, reported as Daily Telegraph Newspaper Co Limited v McLaughlin (1904) 1 CLR 479. A start might, alternatively, be made with the High Court's judgment in Gibbons v Wright (1954) 91 CLR 423.
196The McLaughlin judgments are cited for the proposition that a power of attorney executed by a person who lacks the mental capacity to understand what he or she is doing in executing the instrument is void: (1904) 1 CLR 243 at 276. The same point can be made more clearly by reference to Gibbons v Wright at 91 CLR 444-445 and 448.
197Gibbons v Wright is cited as the pre-eminent Australian authority on the question of the nature and degree of mental capacity to effect an inter vivos transaction. It establishes that different degrees of mental soundness may be required for the validity of different transactions, and that the "standard" is relative to the particular transaction: Crago v McIntyre [1976] 1 NSWLR 729 at 739C-F.
198The foundation passages appear in the joint judgment of Dixon CJ, Kitto and Taylor JJ at 91 CLR 437-438:
"The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. ...
... [The] mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. As Hodson LJ remarked (in Estate of Park [1954] P89 at 136), 'One cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case'.
Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out. ..."
199What follows from this statement of principle is that each case must be considered on its own facts. Care needs to be taken not to over-generalise. There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focussed on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed.
200An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject's mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spacial and relational dimensions.
201Given equity's tender regard for protection of the weak and considerations of conscience, an examination of the question whether a donor had mental capacity to grant a power of attorney will, not uncommonly, also invite a critical inquiry as to whether any element of undue influence may be discernable.
202Where an Enduring Power of Attorney confers on an attorney power to dispose of the principal's property to or for the benefit of the attorney or third parties, the nature and degree of mental capacity required to grant such a power may approximate that required for the making of a valid will. In that event, the "standard" laid down by Banks v Goodfellow (1870) LR 5 QB 549 at 564-565 might apply or be approximated.
203That "standard" is explained in the following terms:
"It is essential to the exercise of [a power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
204An Enduring Power of Attorney limited in its terms, or effect, to authorisation of acts for the benefit of the principal may require consideration of factors different from those considered upon an assessment of mental capacity for the making of a valid will.
205It is not, literally, a matter of imposing, or recognising, a different "standard" of mental capacity in the evaluation of the validity of different transactions. What is required, rather, is an appreciation that the concept of "mental capacity " must be assessed relative to the nature, terms, purpose and context of the particular transaction. Nothing more, or less, is required than a focus on whether the subject of inquiry had the capacity to do, or to refrain from doing, the particular thing under review.
206Insights into appropriate lines of inquiry, or relevant considerations, in a particular case can be obtained from consideration of similar cases in which the validity of similar transactions has been reviewed. However, care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable "standard" or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the Court must be on the substance of the inquiry whether the particular subject had, in fact, the requisite capacity - understanding - to effect a particular transaction.
207Assistance in the current proceedings is available from the observations of a variety of judges.
208The following observations are taken from the judgment of Young J in Ranclaud v Cabban [1988] ANZ ConvR 134:
"...whilst it may be one thing to be aware that a person under a Power of Attorney may act on one's behalf, where the Power, as in the present case, is a general power under s 163B and Schedule VII of the Conveyancing Act 1919 [the precursors of s 8 and Schedule 2 of the Power of Attorney Act 2003], such a power permits the donee to exercise any function which the donor may lawfully authorise an Attorney to do. When considering whether a person is capable of giving that sort of power one would have to be sure not only that she understood that she was authorising someone to look after her affairs but also what sort of things the Attorney could do without further reference to her. ... [p 136].
... [In the present case] experienced solicitors on both sides have witnessed Powers of Attorney and Revocations of Powers. One might ask how a person who was incapable could make a Power of Attorney in the presence of such professional gentlemen. I think the answer is relatively clear. A person only seeing a little bit of the picture and seeing [the Principal] for a short time... may well form the view that it is safe to allow [the Principal] to proceed. It is only when one gets a complete overview of the evidence that one can see just how incapable [the Principal] really is. ... [p 137]."
209His Honour's observations should not be taken as a general criticism of the utility of evidence of an experienced legal practitioner called as a witness to the execution of an instrument the subject of controversy about the mental capacity of an executing party. In Zorbas v Sidiopoulous (No 2) [2009] NSWCA 197 at [89] he recounted his experience that, in probate cases, "the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes". One is tempted to adapt Oliver Wendell Holmes' famous aphorism (in the opening lines of The Common Law, 1881): "The life of the law is not logic, but experience". That is not wholly correct, however. In particular, an acknowledgement should be made of the importance of expert medical evidence as a lens through which a myriad of facts can be seen in context, as a guide to correct decision-making and as a safeguard against error.
210The following observations of Barrett J are taken from Szozda v Szozda [2010] NSWSC 804:
"[31] In considering the question of capacity to create a general and enduring power of attorney, resort is sometimes had to an analogy with testamentary capacity. The validity of the analogy is questionable. A testator must have the capacity to appreciate what his or her property is, to recognise the persons who have a moral claim to the estate and to exercise a balanced judgment as to those claims. The making of a will involves decisions about particular dispositions and the wisdom of them from the point of view of the exercise of the testator's bounty, just as the giving of a power of attorney specifically to facilitate a particular transaction involves a decision as to the wisdom of the transaction from the point of view of the donor's interests. In the latter case, an understanding of the transaction to be facilitated is indispensable to an understanding of the power of attorney: Craigo v McIntyre [1976] 1 NSWLR 729 at 749-750.
[32] It seems to me that different considerations attend a decision to grant a general power of attorney without reference to any foreshadowed transaction and as a means of catering for the possibility that the donor might be unavailable or unable to act at some undefined future time when action is needed. The donor is prescribing no dispositions. He or she has no need to appreciate the extent and nature of moral claims and the extent and nature of the property available to meet them. Because no particular transaction is in contemplation, there is no specific dealing to be assessed as an indispensable concomitant of the giving of the power of attorney. The only matter that can sensibly become the subject of assessment is the creation of the power of attorney itself, for use as and when the need may arise in the future. It is t he nature of that act (by which I mean to include its ramifications and consequences) that the donor must sufficiently understand. That, as I apprehend matters, is what is required by what was said by Dixon CJ, Kitto J and Taylor J in Gibbons v Wright (1954) 91 CLR 423 at 437-438:
'[The] mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as t he capacity to understand the nature of that transaction when it is explained.'
[33] The approach outlined by Hoffmann J in Re K [1988] Ch 310 and approved by the English Court of Appeal in Re W [2001] Ch 609 is, in my opinion, appropriate. Those cases were decided in a particular statutory context but the principle regarding the relevant capacity to understand was not, in my view, affected by that and is of general application. Hoffmann J said (at 313):
'Finally I should say something about what is meant by understanding the nature and effect of the power. What degree of understanding is involved? Plainly one cannot expect that the donor should have been able to pass an examination on the provisions of the 1985 Act. At the other extreme, I do not think that it would be sufficient if he realised only that it gave cousin William power to look after his property. Counsel as amicus curiae helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor's affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor's property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court.'
[34] The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one's affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done - sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home? Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?
[35] The decision to create a general and enduring power of attorney differs from that involved in the making of a will but must be regarded as of a similar degree of complexity or even greater complexity. ... .
[36] If capacity, in the relevant sense, is absent when a power of attorney is granted, the general law position is that the power of attorney is void: McLaughlin v Daily Telegraph Newspaper Co Limited (No 2) [1904] 1 CLR 243."
211In the same judgment Barrett JA considered the operation of s 17 of the Powers of Attorney Act 2003:
"[39] ... s 17 takes as its starting point the existence of a valid power of attorney. It operates in the context of the valid power of attorney and, in the case with which it deals, reduces the effective scope of that power of attorney.
[40] Section 17 was first enacted in 1983 as s 163E(1) and (2) of the Conveyancing Act 1919 (added by the Conveyancing (Powers of Attorney) Act 1983. The purpose of the new provision was explained by the New South Wales Law Reform Commission Report No 20 (1975) - Powers of Attorney and Unsoundness of Body or Mind (at Part 8, paragraph 8.3) as follows:
'The draft section on this subject (draft section 163E) is not concerned with cases where the instrument is void because, by reason of unsoundness of mind, the execution by the principal of the instrument creating the power is not accompanied by an intention to execute an instrument affecting his legal position, or he does not understand the nature of a power of attorney. The draft section is concerned with cases where the principal knows that he is executing an instrument creating a power of attorney and understands the nature of a power of attorney, but does not (or may not) understand, by reason of unsound mind, the nature of some or all of the acts within the scope of the power. In other words, the aim of the draft section is to provide a means for removing doubt about the effectiveness of a power of attorney which the principal intended to create and did create, not to give legal effect to an instrument which, by reason of initial unsoundness of mind, is merely an empty gesture'.
[41] Section 17 thus does not define or describe the extent or quality of mental capacity required for the creation of a valid power of attorney. It merely removes from the scope of the authority created by a valid power of attorney acts the nature of which mental incapacity at inception puts beyond the donor's understanding. There is thus a form of pro tanto invalidity by statute. Assuming no validating intervention of a provision of the Act, the valid power of attorney is ineffectual as a source of authority for the attorney to do acts within the scope of a power the nature of which was beyond the grantor's understanding because of mental incapacity at the time of the creation of the power of attorney."
212The reference to "no validating intervention of a provision of the Act" might be taken as including a reference to Division 3 of Part 5 (ss 29-32) of the Powers of Attorney Act 2003. Insofar as those provisions authorise the Court, on the application of a Principal under a power of attorney, to confirm any power to do an act under the instrument if it appears to the Court that the Principal is incommunicant and it is for the benefit of the Principal that the power be confirmed in whole or part, an application by a Principal may be made on his or her behalf by a tutor appointed for that purpose: Re Gouder [2005] NSWSC 1116 at [5]. It has not been necessary to review those provisions in these proceedings because no act of Susan as Marjorie's attorney has been under direct challenge. Differences between the parties as to recovery of possession of the King's Point holiday home, and the debt owed by Jamie to Marjorie, have been litigated by reference to the powers of the Court to give directions for the due management of Marjorie's interests.
213Although Jamie submitted that Marjorie's power of attorney was invalid because she lacked the capacity to understand "the nature of some or all of the acts within the scope of the power" bearing upon her relationship with him and the provision that might be made for, or denied, him, he appears to have accepted that (assuming the power of attorney was not wholly invalid for want of capacity) it was, subject to any directions given by the Court for management of Marjorie's interests, open to Susan as Marjorie's Attorney to evict him from the family holiday home at King's Point. At the commencement of the hearing, he indicated a preparedness to vacate that property whilst, at the same time, seeking other orders designed to obtain inter vivos and testamentary benefits from Marjorie's estate.
214Section 17's existence counsels caution against a simple equation between the concept of mental capacity in its application to a power of attorney governed by the Powers of Attorney Act 2003 and the concept of mental capacity in its application to other transactions (such as Wills) not governed by the Act.
215On the question of Marjorie's mental capacity, the parties have joined issue on two questions of principle.
216The first relates to s 17. It is whether a finding that Marjorie's Enduring Power of Attorney was valid requires a finding that, at the time of its execution, she had the capacity to "understand, or anticipate, the far reacher ramifications of the granting of her [power of attorney] to Susan, such as Susan, on her behalf, calling upon the payment of Jamie's loan/gift and asking Jamie to relocate from King's Point". That formulation of the question derives from the joint report of the parties' expert psychiatrists. Dr P C Wijeratne was retained on behalf of Jamie. Associate Professor Carmelle Peisah was retained on behalf of Dr Scott and Susan. They concurred that it was unlikely that Marjorie, in June 2008, had that level of understanding (about "far reaching ramifications") of the power of attorney.
217Dr Wijeratne and Associate Professor Peisah also concurred on the following statement: "... the evidence suggests that in June 2008 (Marjorie) understood some of the 'sort of things' that Susan, as her attorney, could do without reference to her (eg, 'sell her up', 'look after things for us'), that she trusted her ('wasn't worried about Susan', 'someone who we trust to look after things for us'), that this trust was in keeping with the history and previous nature of their relationship, and that there had been no change in the nature of that relationship coincident with her dementia."
218There is a grey area between the two bookends identified by the experts: at one end, the "sort of things" that Susan, as her attorney, could do without reference to her; and, at the other end, "the far-reaching ramifications" of the grant of her power of attorney to Susan, as the grant of the power could bear upon Jamie.
219There is a space between the bookends, and Marjorie's Power of Attorney may occupy that space. It required Susan to keep within the limits of what was required for the benefit of Marjorie It was not directed to any benefits or burdens that might fall at the feet of others, be they Susan, Jamie or somebody else.
220I am not to be taken, here, as embracing the experts' opinion about Marjorie's capacity to understand "far-reaching ramifications". I have set out their opinions here simply to crystallise an issue between the parties.
221Jamie contends that a finding of validity requires a finding that Marjorie could understand the "far-reaching ramifications" for him of grant of an Enduring Power of Attorney to Susan. Dr Scott and Susan contend that whether or not Marjorie did have that understanding, about future events including events without any foundation in the present, is irrelevant. As at 27 June 2008, Jamie was indebted to Marjorie in the sum of $127,000, $80,000 of which was a fresh borrowing. However, he did not move into the King's Point holiday home as a full time occupant until September 2010.
222I do not feel obliged to resolve the parties' point of difference expressed in terms referable to the joint expert opinion. There are several reasons for this. First, I do not find the terminology used to define the two "book ends" particularly helpful. I have a sense that it simply restates in different language the qualitative judgement required on the facts of the case by reference to Gibbons v Wright without getting closer to the hard edge of decision making required of the Court. Secondly, because of the terms of the Power of Attorney executed in this case, I am inclined to place the instrument in the grey area between the two identified "book ends". Thirdly, I apprehend that many, if not most, people of full mental capacity could not "understand, or anticipate, the far reaching ramifications" of the grant of a power of attorney, limited to acts for the benefit of the donor, in relation to future events affecting a member of family in the full range of unpredictable events that can effect a family. Fourthly, identification of a "standard" of mental capacity in terms of an ability to understand, or anticipate, "far-reaching ramifications" lacks precision because it leaves indeterminate the test for determining how "far" along a continuum, or some other form of scale, should be regarded as "far reaching".
223I have in mind, also, that Jamie's contentions are influenced by a forensic desire to equate the "standard" applicable to Marjorie's capacity to understand her Enduring Power of Attorney with the "standard" applicable to testamentary capacity. The document she executed was not intended, and did not in terms provide for an attorney, to dispose of her estate as if on a Will.
224That said, the effect of s 17 on an application of statements in Gibbons v Wright (1954) 91 CLR 423 at 437 and 438 to the view of the facts taken by the experts in their joint report favours a finding that Marjorie's Enduring Power of Attorney was validly executed.
225In Gibbons v Wright Dixon CJ, Kitto and Taylor JJ, materially, wrote the following:
"... [The law] requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation... (p 437).
... Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out... (p 438)."
226The experts are agreed that Marjorie understood some of the sort of things that Susan, as her attorney could do without reference to her. One of those things was said to be to "sell her up".
227That level of understanding, in my view, is sufficient to constitute a capability to understand "the general nature" of what Marjorie was doing by her execution of the Power of Attorney. Whether Susan could, indeed, "sell her up" is doubtful outside the context of a transaction designed to be for the benefit of Marjorie. However, it is no small thing for Marjorie to have understood that the authority she was conferring upon Susan included a power to "sell her up".
228In terms of the observations in Gibbons v Wright, there was no "wider transaction" in view at the time the Power of Attorney was executed. The possibility that Susan, as attorney, might be called upon to recover property of Marjorie from Jamie was not part of the same transaction as Marjorie's execution of the power of attorney. The power of attorney was not part of a scheme to procure Marjorie's imprimatur for the purpose of action being taken against Jamie in her name. The instrument was intended simply to facilitate conduct of Marjorie's affairs for the benefit of Marjorie.
229Nevertheless Jamie's argument, based on the experts' opinion about Marjorie's lack of understanding about the "far reaching ramifications" of execution of the power of attorney would, if accepted, do no more than attract the operation of s 17(1). Subject to the Powers of Attorney Act, Marjorie's power of attorney was not ineffective only because the prospect that Susan could, or would, take property recovery action against Jamie may have been (as the experts opine) beyond Marjorie's understanding on 27 June 2008.
230The only such acts here potentially identified are acts for the recovery of property of Marjorie. In these proceedings they fall for consideration in the context of directions as to management of Marjorie's interest s independent of Jamie's challenge to the validity of the Power of Attorney.
231The second issue of principle upon which the parties have joined issue is the question of onus of proof. Does Jamie bear the onus of proving that Marjorie lacked the mental capacity to make a valid power of attorney? Or do Dr Scott and Susan bear the onus of proving that she had the requisite capacity?
232Jamie relies upon the judgment of Forrest J in Ghosn v Principle Focus Pty Limited (no 2) [2008] VSC 574 at [65]-[68], which, in turn, relies upon a decision of the Victorian Court of Appeal in Kantor v Vosahlo [2004] VSCA 235 at [3] and [49]. The latter judgment concerned an argument as to the capacity of a testator. In essence, Forrest J assimilated the case of a dispute about the capacity to execute a power of attorney with the case of a dispute about the capacity to execute a will. He held that, once the question of a donor's capacity to execute a power of attorney is challenged and there is prima facie evidence to support that challenge, then the onus of proof rests upon the donee to demonstrate that the donor had the capacity to execute the instrument.
233Dr Scott and Susan rely upon the judgment of Barrett J in Szozda v Szozda [2010] NSWSC 804 at [20]-[26]. It, in turn, relies upon the starting point of a "presumption of sanity" derived from observations of Lord Chancellor Thurlow in Attorney General v Parnther (1792) 3 Bro 441; 29 ER 632; Handley JA in Murphy v Doman (2003) 58 NSWLR 51 at 58 [36]; Edmonds J in Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at [66]; and Harrison J in Lake v Crawford [2010] NSWSC 232 at [13]. His Honour declined to accept Forrest J's analogy between a dispute about the validity of a will and a dispute about the validity of a power of attorney. He noted that, in proceedings for a grant of probate, a putative executor bears the onus of proving testamentary capacity to obtain an order in rem (whereas the validity of a power of attorney is an issue only inter partes). He distinguished Ghosn v Principal Focus Pty Limited because in that case the donee of a power of attorney sought to make out a positive case of the validity of a power of attorney. He was attracted by the proposition that, as a consequence of the existence of a "presumption of sanity" operating in the general law, a person who asserts incapacity must prove it.
234Where the burden of proof may lie in a case calling for an application of general law principles may depend upon the class of case concerned, whether there is accumulated judicial experience in dealing with cases of that class and considerations of fairness. From distillations of experience and considerations of fairness, legal rules may emerge. Such rules might be informed by a general precept that "he who alleges must prove", but that is no sure guide to every case. The operation of rules as to onus of proof might also be allowed practical scope for reasonable operation by a distinction being drawn between the location of the "legal" or "ultimate" burden of proof (a failure to discharge which results in the failure of a claim) and a shifting "evidentiary" burden (which, in the course of a hearing, generally means that each party may be at a forensic disadvantage if he, she or it fails to adduce evidence in answer to another party's evidence suggestive of a particular outcome): Currie v Dempsey (1967) 69 SR (NSW) 116 at 125, the subject of commentary in JD Heydon, Cross on Evidence (8th Australia ed, Lexis Nexis Butterworths, 2010), paras [7060]-[7075].
235I do not feel constrained, in these proceedings, to decide the question of validity of Marjorie's Enduring Power of Attorney by reference to location of onus of proof. Wherever the onus may lie, my conclusion as to the validity of the instrument is the same. I am comfortably satisfied as to the outcome on the facts of the case.
236In reaching that conclusion I acknowledge that, on an exercise of the Court's protective jurisdiction no less than in the exercise of equitable jurisdiction, the Court is required to review "all the circumstances of the case" and to do so with an eye more critical than might be appropriate in a bare, adversarial contest between parties at issue about the existence or otherwise of a common law cause of action. The obligation of the Court to consider the interests of a person in need of protection, and to do so, if necessary, untrammelled by competing adversarial contentions, may have an impact, in particular cases, on whether or not an onus of proof (wherever it might reside) is discharged.
237That said, in the circumstances of the current proceedings, I incline towards acceptance of Barrett J's analysis in Szozda v Szozda.
238In principle, it seems to me, the practical utility of a power of attorney would be severely diminished if, in all cases or even most, a donee were required to prove that the donor had the requisite mental capacity to grant it. The nature of such an instrument requires that, in general, parties dealing with an attorney in circumstances in which the instrument appears to be regular on its face, should be able, in the ordinary course, to act upon an assumption that the instrument is valid. Whether such a conclusion is reinforced by reference to a "presumption of sanity" or some other form of presumption (such as a "presumption of regularity"), it is grounded upon the character of the instrument and the purpose it serves in the community served by the law.
239Such a conclusion is also reinforced, in the case of an Enduring Power of Attorney, by the fact that a statute requires that such an instrument be witnessed and certified by a "prescribed person" from whose participation in the process the Court, and all who rely upon his or her certification of the instrument, might reasonably be expected to draw some comfort.
240However, whether or not the validity of a power of attorney is supported by the availability of a "presumption" bearing upon validity, the nature of the process of reviewing such an instrument in the context of a judicial review in which a question as to the donor's mental capacity has arisen, means that it would be a rare case in which any question about who bears the onus of proof is determinative.
241This case is no different. On the view I take of the evidence, nothing turns on whether the onus of proof may lie.