A limitation is that a Power of Attorney becomes void if the maker of the document becomes mentally incapacitated or infirm.

The law therefore allows for the creation of an Enduring Power of Attorney.

• An Enduring Power of Attorney does not become invalid when the maker of the document becomes mentally incapacitated as long as the document clearly states that intention.

• To be valid an Enduring Power of Attorney must comply with the Power of Attorney Act.

• In particular, it must contain a statement that says it will take effect when the donor of the power becomes mentally incapacitated or infirm, or that it will continue despite any mental incapacity or infirmity.

A Power of Attorney and an Enduring Power of Attorney can be contained within the same document. For example, a person can complete a Power of Attorney to take effect immediately. The document can also include an Enduring Power of Attorney by stating that the powers delegated will continue despite the donor becoming mentally incapacitated or infirm.

Unless the power of attorney is expressed to be irrevocable, the document creating the Enduring Power of Attorney cannot exclude the possibility of any of the above events taking place. For example, the document cannot state that if an order of trusteeship is granted for a donor, the power of attorney will continue.