Capacity to Appoint an Enduring Power of Attorney 

What is an Enduring Power of Attorney?

An enduring power of attorney (EPOA) is a legal document under which a person (the principal) appoints one or more individuals (attorneys) to make decisions on their behalf regarding financial matters, personal matters, or both. What distinguishes an enduring power of attorney from a general power of attorney is that it continues to operate (or endures) even after the principal loses decision-making capacity.

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What Capacity is Required to Make an Enduring Power of Attorney?

To make a valid enduring power of attorney in Victoria, the principal must have decision-making capacity at the time of signing the document. Importantly, the capacity required is specific to the decision being made — that is, the capacity to understand and execute the EPOA itself — rather than capacity across all of the matters the EPOA will cover.

A person has decision-making capacity to make an EPOA if, at the time of execution, they are able to:
 

• Understand the nature and effect of the enduring power of attorney — including that the attorney will be authorised to make decisions on their behalf, and that this authority will continue if they lose capacity

• Understand that, while they retain capacity, they may revoke the document at any time

• Appreciate the significance of the decision and the trust being placed in the appointed attorney

• Communicate their decision

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When is a Capacity Assessment for an EPOA Needed?

A formal assessment may be requested where:

• There is uncertainty about whether a person has sufficient capacity to execute a valid EPOA

• A solicitor wishes to obtain a contemporaneous record of the person's capacity before proceeding with the document

• A treating team or family member has raised concerns about the person's cognitive functioning

• The person's capacity is likely to be contested at a future time
   

What Does Assessment Involve?

A neuropsychological assessment of capacity to appoint an enduring power of attorney involves evaluation of the specific cognitive abilities required to understand and execute the document. The assessment is informed by cognitive testing, clinical interview, collateral history, and review of relevant documentation, with findings integrated to provide a clear opinion as to whether the person meets the legal threshold for capacity to execute an EPOA in Victoria.