Protection of Personal and Property Rights Act 1988

98 Enduring power of attorney in relation to personal care and welfare

(1)

Subject to subsections (3) and (4), a donor of an enduring power of attorney may authorise the attorney to act in relation to the donor’s personal care and welfare, either generally or in relation to specific matters, and in either case such authorisation may be given subject to conditions and restrictions.

(2)

Notwithstanding section 95(3), an enduring power of attorney may not appoint a trustee corporation to be an attorney, nor may it appoint more than 1 individual to be attorneys, to act in relation to the donor’s personal care and welfare.

(3)

The attorney—

(a)

must not act in respect of a significant matter relating to the donor’s personal care and welfare unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable; and

(b)

must not act in respect of any other matter relating to the donor’s personal care and welfare unless the attorney believes on reasonable grounds that the donor is mentally incapable.

(3A)

For the purposes of subsection (3), a donor’s mental capacity is determined—

(a)

at the time a decision about the matter relating to the donor’s personal care and welfare is being made or is proposed to be made; and

(b)

in relation to the personal care and welfare matter concerned.

(3B)

Despite subsection (3A),—

(a)

if the donor is certified as mentally incapable because of a health condition that is likely to continue indefinitely, no further certificates are required under subsection (3)(a) in relation to any further personal care and welfare matters:

(b)

if the donor is certified as mentally incapable because of a health condition that is likely to continue for a period specified in the certificate, no further certificates are required under subsection (3)(a) in relation to any further personal care and welfare matters that arise during the specified period.

(4)

The attorney shall not act in respect of any matter relating to the donor’s personal care and welfare where, if the attorney were the welfare guardian of the donor, the attorney would be denied the power to act by section 18.

(5)

Subject to subsections (3) and (4), any action taken by the attorney in relation to the donor’s personal care and welfare shall have the same effect as it would have had if it had been taken by the donor and the donor had had full capacity to take it.

(6)

In subsection (3)(a), a significant matter relating to the donor’s personal care and welfare means a matter that has, or is likely to have, a significant effect on the health, well-being, or enjoyment of life of the donor (for example, a permanent change in the donor’s residence, entering residential care, or undergoing a major medical procedure).

Section 98(3): substituted, on 25 September 2008, by section 11(1) of the Protection of Personal and Property Rights Amendment Act 2007 (2007 No 90).

Section 98(3A): inserted, on 25 September 2008, by section 11(1) of the Protection of Personal and Property Rights Amendment Act 2007 (2007 No 90).

Section 98(3B): inserted, on 25 September 2008, by section 11(1) of the Protection of Personal and Property Rights Amendment Act 2007 (2007 No 90).

Section 98(6): added, on 25 September 2008, by section 11(2) of the Protection of Personal and Property Rights Amendment Act 2007 (2007 No 90).