39When attorney's power is exercisable

39 When attorney's power is exercisable (1) A principal may specify, in an enduring power of attorney, a time from which, a circumstance in which or an occasion on which the power for all matters or the power for a specified matter under the power of attorney is exercisable, which may be— (a) immediately on the making of the power; or (b) when the principal ceases to have decision making capacity for the matters or matter; or (c) any other time, circumstance or occasion. (2) If a specification is not made in an enduring power of attorney under subsection (1), the power for all matters under the enduring power of attorney is exercisable on and from the making of the power of attorney. (3) Despite a specification being made under subsection (1) in an enduring power of attorney, if before the specified time, circumstance or occasion for a matter, the principal does not have decision making capacity for the matter, an attorney who has power for the matter may exercise that power during any period when the principal does not have that capacity. (4) If an attorney is acting under an enduring power of attorney as to a matter because the principal does not have decision making capacity for the matter, a person dealing with the attorney may ask for evidence to establish that the principal does not have the decision making capacity. An example of evidence that may be given under subsection (4) is a medical certificate as to the principal's decision making capacity.