sec.41Principal’s capacity to make an enduring power of attorney

### sec.41 Principal’s capacity to make an enduring power of attorney A principal has capacity to make an enduring power of attorney only if the principal— is capable of making the enduring power of attorney freely and voluntarily; and understands the nature and effect of the enduring power of attorney. Under the general principles, an adult is presumed to have capacity. See section 6C , general principle 1. Understanding the nature and effect of the enduring power of attorney includes understanding the following matters— the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; when the power begins; once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; the power the principal has given continues even if the principal becomes a person who has impaired capacity; at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power. If there is a reasonable likelihood of doubt, 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 these matters. For this section, schedule 3 , definition capacity does not apply. s 41 amd 2019 No. 9 s 62 (sec.41-ssec.1) A principal has capacity to make an enduring power of attorney only if the principal— is capable of making the enduring power of attorney freely and voluntarily; and understands the nature and effect of the enduring power of attorney. Under the general principles, an adult is presumed to have capacity. See section 6C , general principle 1. (sec.41-ssec.2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters— the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; when the power begins; once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; the power the principal has given continues even if the principal becomes a person who has impaired capacity; at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power. If there is a reasonable likelihood of doubt, 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 these matters. (sec.41-ssec.3) For this section, schedule 3 , definition capacity does not apply. - (a) is capable of making the enduring power of attorney freely and voluntarily; and - (b) understands the nature and effect of the enduring power of attorney. - (a) the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; - (b) when the power begins; - (c) once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; - (d) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; - (e) the power the principal has given continues even if the principal becomes a person who has impaired capacity; - (f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.