Guides / Capacity
Capacity: when is it too late to sign?
A power of attorney can be made only by a person who has the capacity to make it. A diagnosis such as dementia does not by itself answer the question. The test is about understanding this decision, at this time. Victorian law.
Capacity to make a power of attorney: in short
- A person is presumed to have capacity unless there is evidence to the contrary.
- Capacity means being able to understand the relevant information and the effect of the decision, retain it long enough, use or weigh it, and communicate the decision in some way.
- Capacity can exist for some matters and not others, and can come and go.
- An unwise decision is not, by itself, a lack of capacity.
- If capacity has gone, a power cannot be made. The path is a guardianship or administration order from VCAT.
What the person must understand to make an enduring power
- that they can place conditions on the power and give instructions;
- when the power starts;
- that once it is exercisable the attorney can do what they could do themselves;
- that they can revoke it while they have capacity;
- that it continues if they lose capacity;
- that if they lose capacity they will not be able to oversee how it is used.
How capacity to make a power of attorney is assessed
Whoever assesses capacity must take reasonable steps to do so at a time and in a place where the person’s capacity can be assessed most accurately. A person has capacity if they can make the decision with practicable and appropriate support, such as information in a suitable format, more time, or technology.
In practice we see the person alone, at a good time of day for them, and ask open questions. [CHECK: confirm his practice.] Where there is doubt we ask for a report from the person’s doctor, a geriatrician or a neuropsychologist before going further.
The witnesses' part
Each witness certifies that the person appeared to have decision making capacity when signing. A lawyer or doctor as witness adds a professional record of that.
If capacity is borderline
Do not wait. Capacity that fluctuates may be enough on a good day, with support, and a carefully recorded signing protects the document later.
If capacity has gone
No one can sign for them, and a power signed without capacity can be declared invalid by VCAT and is then void from the start. See No power of attorney: guardianship and administration.
Capacity to make a power of attorney: common questions
Have another question? Phone 1800 776 529 or send us a message.
Possibly. The question is whether she meets the legal test for this decision, with support, when she signs.
At the time of signing, the witnesses and any professional asked to assess. If the power is later challenged, VCAT.
The instructions must come from her. It is an offence to dishonestly obtain an enduring power of attorney to gain a financial advantage or to cause loss.
Next step
If capacity is in doubt, contact us before anything is signed. Send instructions or call 1800 776 529.
Capacity to make a power of attorney: the law
- Powers of Attorney Act 2014 (Vic) ss 4, 5, 23, 36, 116, 118, 119, 135.
Last reviewed: November 2026. This page is general information about Victorian law as at November 2026. It is not legal advice about your circumstances.
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Phone: 1800 776 529
Email: info@enduringpowerofattorney.com.au
Hours: Monday to Friday, 9 am to 5:30 pm
Office: 435 Nepean Highway, Frankston VIC 3199 (by appointment)
We act for attorneys and for families, but never for both sides of the same dispute. Before we start, we check that we have not acted for anyone else involved. [CHECK: confirm this line]