Solicitors and Enduring Documents: Current Practice and Best Practice

Journal of Law and Medicine, 16(3), pp. 466-487, 2008

Posted: 10 Jul 2016

See all articles by Lindy Willmott

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Date Written: 2008

Abstract

Queensland’s guardianship legislation requires that a witness to an enduring power of attorney or advance health directive not only certify that the principal signed the document in their presence, but also that the principal appeared to have the capacity necessary to make the enduring document. This article examines how solicitors fulfil this obligation to certify the principal’s capacity when witnessing these documents, drawing on empirical research and a review of publicly available court and tribunal decisions. The article concludes that the current practice of solicitors when certifying the capacity of principals to complete these documents falls short of best practice.

Keywords: Adult guardianship law, Enduring powers of attorney, Assessment of capacity, Legal ethics

Suggested Citation

Willmott, Lindy and White, Ben, Solicitors and Enduring Documents: Current Practice and Best Practice (2008). Journal of Law and Medicine, 16(3), pp. 466-487, 2008. Available at SSRN: https://ssrn.com/abstract=2806838

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Register to save articles to
your library

Register

Paper statistics

Abstract Views
84
PlumX Metrics