19Creation of enduring power of attorney

#### 19 Creation of enduring power of attorney 19 Creation of enduring power of attorney (cf 1919 No 6, s 163F (2)) > > (1) An instrument that creates a power of attorney creates an enduring power of attorney for the purposes of this Act if— > > > > > (a) the instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and > > > > > (b) execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and > > > > > (c) there is endorsed on, or annexed to, the instrument a certificate by that person stating that— > > > > > > > (i) the person explained the effect of the instrument to the principal before it was signed, and > > > > > > > (ii) the principal appeared to understand the effect of the power of attorney, and > > > > > > > (iii) the person is a prescribed witness, and > > > > > > > (iv) the person is not an attorney under the power of attorney, and > > > > > > > (v) the person witnessed the signing of the power of attorney by the principal. > > > (2) In this section— > > > > prescribed witness means— > > > > > (a) a registrar of the Local Court, or > > > > > (b) an Australian legal practitioner, or > > > > > (c) a licensee under the [Conveyancers Licensing Act 2003](/view/html/inforce/current/act-2003-003), or an employee of the NSW Trustee and Guardian or a trustee company within the meaning of the [Trustee Companies Act 1964](/view/html/inforce/current/act-1964-006), who has successfully completed a course of study approved by the Minister, by order published in the Gazette, for the purposes of this paragraph, or > > > > > (d) a legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument, or > > > > > (e) any other person (or person belonging to a class of persons) prescribed by the regulations for the purposes of this paragraph. > > **s 19:** Am 2007 No 94, Sch 2; 2009 No 49, Sch 2.46 \[3\]; 2009 No 56, Sch 2.46; 2017 No 63, Sch 4.35.