Capacity to make a Power of Attorney
You must have capacity to make a valid Power of Attorney. This means that you:
- Are over the age of 18 years
- Know and understand what you are doing
- Understand the decisions you are making
- Understand the consequences of those decisions.
A person is presumed to have capacity unless there is evidence to the contrary. If there is any doubt about your physical or mental capacity to make a Power of Attorney, then you should seek legal advice from a qualified person.
Capacity is also relevant in terms of when a Power of Attorney may begin and end. For example, an Enduring Power of Attorney will continue to operate if you become a person with impaired capacity, whereas a General Power of Attorney is automatically cancelled in the unfortunate event that this happens.
You cannot make a Power of Attorney on behalf of another person. You can only make your own Power of Attorney. If you make a Power of Attorney for someone else (and you are not that person's Lawyer), it will not be valid. Appointing yourself as an Attorney under a POA is considered fraud and has very serious consequences, such as terms of imprisonment.