Walking a Legal Tightrope: Assessing the Legal Capacity of Persons Experiencing Dementia to Make and Revoke Enduring Powers of Attorney in Australia

This chapter considers the legal conundrum arising where an older person has entered into an enduring power of attorney (EPOA) but was, at the time of entering into, or later revoking, the EPOA, experiencing dementia. If it can be established that the older person did not have legal capacity to enter into or revoke the EPOA, the instrument is rendered void ab initio and therefore subsequent dealings made pursuant to the EPOA can be nullified. The chapter examines the legal consequences of such a finding of incapacity and suggests that, with the rising incidence of dementia in Australia, there should be an enhanced focus on properly and consistently assessing legal capacity where a person seeks to enter into or revoke an EPOA.