---
title: "Record the effect of incapacity at the time a power is given"
url: "https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/record-the-effect-of-incapacity-at-the-time-a-power-is-given"
type: "task"
site: "AI Law Framework"
id: "A18-FL20261022-17"
practice_area: "Elder Law & Powers of Attorney / Guardianship"
tier: "yellow"
lawyer_review: "required"
last_reviewed: "2026-10-22"
---

# Record the effect of incapacity at the time a power is given

> Where the lawyer has marked that an act within the scope of the power was beyond the principal's understanding, through mental incapacity, at the time the power was given, record two propositions and stop.…

Canonical page: https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/record-the-effect-of-incapacity-at-the-time-a-power-is-given  
Last reviewed: 2026-10-22

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Elder Law & Powers of Attorney / Guardianship](https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship.md) |
| Human involvement | Yellow: Lawyer and AI draft together |
| How AI is used | Where the lawyer has marked that an act within the scope of the power was beyond the principal's understanding, through mental incapacity, at the time the power was given, record two propositions and stop. First, subject to the Act, the power is not ineffective only because of that fact. Second, the power does not authorise the attorney to do such an act unless the act is authorised by or under the Act. Do not decide the principal's understanding. Do not decide that any act is authorised. |
| What the lawyer must review | The lawyer decides capacity at the time the power was given, and whether any later act is authorised by or under the Act. Section 17(1) of the Powers of Attorney Act 2003 (NSW) says that, subject to the Act, a power of attorney is not ineffective only because any act within its scope was beyond the principal's understanding through mental incapacity at the time the power is given. Subsection (2) says the power does not authorise an attorney to do any such act unless it is authorised by or under the Act. The note says Division 3 of Part 5 enables the Supreme Court of New South Wales to confirm the operation of a power despite that incapacity. That Division was not opened, and this task does not prepare a confirmation application. This is not a capacity-assessment note, and it is not the rule about an act done later under an enduring power. |
| Written for / versions | 1 jurisdiction versions below |

## Checking plan

**Source-by-source verification**

Trace relied-on content to independent sources and check for relevant material the output has missed.

- What the AI does: Where the lawyer has marked that an act within the scope of the power was beyond the principal's understanding, through mental incapacity, at the time the power was given, record two propositions and stop. First, subject to the Act, the power is not ineffective only because of that fact. Second, the power does not authorise the attorney to do such an act unless the act is authorised by or under the Act. Do not decide the principal's understanding. Do not decide that any act is authorised.
- What the lawyer does: The lawyer decides capacity at the time the power was given, and whether any later act is authorised by or under the Act. Section 17(1) of the Powers of Attorney Act 2003 (NSW) says that, subject to the Act, a power of attorney is not ineffective only because any act within its scope was beyond the principal's understanding through mental incapacity at the time the power is given. Subsection (2) says the power does not authorise an attorney to do any such act unless it is authorised by or under the Act. The note says Division 3 of Part 5 enables the Supreme Court of New South Wales to confirm the operation of a power despite that incapacity. That Division was not opened, and this task does not prepare a confirmation application. This is not a capacity-assessment note, and it is not the rule about an act done later under an enduring power.
- Who reviews: Responsible lawyer with competence in the matter
- Basis: Practical workflow informed by the linked primary sources; the traffic light and working checks are editorial guidance, not a court classification.
- Why: The level reflects what the work is, the consequence of an error, and how much of the output the lawyer must independently re-derive.

## Checks the lawyer makes

1. Do not assess capacity at the time the power was given.
2. Record both subsections. Do not stop after the words 'not ineffective'.
3. Do not prepare a confirmation application. Division 3 of Part 5 was not opened.
4. Do not treat this as the rule for an act done later, after an enduring power is operating.

## Notes

- These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.

## Sources

- [Powers of Attorney Act 2003 (NSW) s 17, initial mental incapacity](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/poaa2003240/s17.html) (checked 2026-10-22)

## Jurisdiction versions

| Jurisdiction | Level |
| --- | --- |
| [United States](https://ailawframework.com/practice/elder-law-and-powers-of-attorney-guardianship/record-the-effect-of-incapacity-at-the-time-a-power-is-given/united-states.md) | Yellow |

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*