Re An Incapacitated Principal [2025] NSWSC 89

Re An Incapacitated Principal [2025] NSWSC 89

The enduring power of attorney is ordered to be rectified by insertion of the required statutory statement as it was the clear intention of the principal and attorneys that the authority continue after loss of capacity; the protective and equitable jurisdictions of the Court together authorise such a rectification order in the best interests of the incapacitated principal.

Parties
Plaintiff: NSW Trustee; Defendant: Incapacitated Principal; Interested Persons: Adult children (Attorneys) of the Defendant
Jurisdiction
Australia
Judgment Date
24 February 2025
Procedural Posture
Application for Rectification of Enduring Power of Attorney / Final Orders
Outcome
Orders granted
Legal Topics
Rectification, Enduring Power of Attorney, Mental Incapacity
Equity Protective Jurisdiction Rectification Enduring Power of Attorney Mental Incapacity

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Parties

NSW Trustee

Plaintiff

Incapacitated Principal

Defendant

Adult children (Attorneys) of the Defendant

Interested Persons

Procedural Posture

Application for Rectification of Enduring Power of Attorney / Final Orders

Legal Issues

  1. 1 Whether the enduring power of attorney can be rectified after the principal has lost mental capacity
  2. 2 Whether the omission of the statutory enduring statement invalidates the instrument
  3. 3 Whether the NSW Trustee has standing to make the application

Ratio Decidendi

The enduring power of attorney is ordered to be rectified by insertion of the required statutory statement as it was the clear intention of the principal and attorneys that the authority continue after loss of capacity; the protective and equitable jurisdictions of the Court together authorise such a rectification order in the best interests of the incapacitated principal.

Court Disposition

Orders granted

Orders

  • ORDER that the document entitled "Power of Attorney of [the Incapacitated Principal]" dated 11 December 2017 be rectified by inserting the words "I give this power of attorney with the intention that it will continue to be effective if I lack the capacity through loss of mental capacity after its execution"...
  • ORDER that there be no order as to the costs of the NSW Trustee to the intent that it bear its own costs of the summons, such costs to be paid out of the Reserve Fund pursuant to section 109 of the NSW Trustee and Guardian Act 2009 NSW.