Re A Power of Attorney [2025] NSWSC 1006 involved an elderly principal (the donor) who in 2017 executed an instrument appointing Simon Singer (the applicant), a relative of the principal, as attorney, intending the instrument to operate after the principal lost capacity.
38 Advice or directions concerning reviewable powers of attorney
(1) An attorney under a reviewable power of attorney may apply for advice or direction by a review tribunal on any matter relating to the scope of the attorney’s appointment or the exercise of any function by the attorney under a reviewable power of attorney.
(2) In determining any such application, a review tribunal may decide to—
(a) approve or disapprove of any act proposed to be done by the attorney, or
(b) Give such advice or direction as it considers appropriate, or
(c) vary the effect of the enduring power of attorney or make any other order it could make in an application under section 36.
(3) No proceedings lie against an attorney under a reviewable power of attorney for or on account of any act, matter or thing done or omitted to be done by the attorney in good faith and in accordance with any approval, advice or direction given under this section.
Simon Singer (the applicant) brought an application under s 38 of the Act seeking the authority to manage the principal’s affairs as the latter’s health deteriorated and capacity declined. On whether the Instrument created a valid enduring power of attorney under the Powers of Attorney Act 2003 (NSW).
Sections 17 and 18 provide:
17 Initial mental incapacity
(1) Subject to this Act, a power of attorney is not ineffective only because any act within the scope of the power is of such a nature that it was beyond the understanding of the principal through mental incapacity at the time the power is given.
(2) However, a power of attorney does not authorise an attorney to do any such act unless it is authorised by or under this Act.
18 Supervening mental incapacity does not affect the validity of acts that the principal understands
A power of attorney is effective to the extent that it concerns any act within its scope that is of such a nature that it is not beyond the understanding of the principal through mental incapacity at the time of the act.
Section 19 of the Powers of Attorney Act 2003 (NSW) provides
Creation of enduring power of attorney
(1) An instrument that creates a power of attorney creates an “enduring power of attorney” for the purposes of this Act if–
(a) The instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and
(b) execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and
(c) There is endorsed on, or annexed to, the instrument a certificate by that person stating that–
(i) the person explained the effect of the instrument to the principal before it was signed, and
(ii) the principal appeared to understand the effect of the power of attorney, and
(iii) the person is a prescribed witness, and
(iv) the person is not an attorney under the power of attorney, and
(v) the person witnessed the signing of the power of attorney by the principal.
(2) In this section– “prescribed witness” means–
(a) a registrar of the Local Court, or
(b) an Australian legal practitioner, or
(c) a licensee under the Conveyancers Licensing Act 2003, or an employee of the NSW Trustee and Guardian or a trustee company within the meaning of the Trustee Companies Act 1964, who has successfully completed a course of study approved by the Minister, by order published in the Gazette, for the purposes of this paragraph, or
(d) a legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument, or
(e) any other person (or person belonging to a class of persons) prescribed by the regulations for the purposes of this paragraph.
In Re A Power of Attorney [2025] NSWSC 1006, Hammerschlag CJ in Equity considered an instrument that the NSW Land Registry Services identified as ommitting the the fourth requirement and refused registration. A solicitor employed by the attorney later added the missing words to rectify the omission. The attorney sought to sell the principal’s real property to fund the principal’s care.
“The words of the section make it clear, in terms that compliance is required when the witness witnesses the execution of the instrument:
(1) the chapeau to s 19(1) is in the present tense;
(2) the chapeau to each of s 19(1)(a), (b) and (c) is in the present tense;
(3) the certificate must state that the witness explained the effect of the instrument before it was signed, and the principal appeared to understand its effect;
(4) self-evidently, the person must be a prescribed witness at the time of the witnessing and certify that he or she is not an attorney under the power of attorney;
(5) The last requirement of s 19(c) is (iv), which requires the witness to certify that he or she has witnessed the signing of the power of attorney by the principal. Logically and rationally, the earlier requirements in 19(c) must be satisfied before, or at the time, the certificate is issued.
There is no room for subsequent compliance. If there was, the enduring power of attorney could be created at a later and indeterminate point in time, which is inimical to the underlying policy of s 19 that specific requirements must be met at a specific time so that there is certainty whether an instrument which has potentially great significance has created an enduring power of attorney. A contrary conclusion would leave open the unpalatable possibility, as would be the case here, that an enduring power of attorney is created at a time when the principal has lost mental capacity to give it.
Even if such a certificate could effectively be given ex post facto by a prescribed witness (which I do not think it can), the amended certificate was not given by the prescribed witness. A certificate cannot be given by someone else on a prescribed witness’s behalf. Subsequently, and more recently, the witness has himself brought about an amendment to the certificate in an effort to make it compliant, but this too cannot be effective for the reasons referred to above.”
(at [21]-[22]).
Adding that
‘[a] certificate cannot be given by someone else on a prescribed witness’s behalf’ (at [23]).
Hammerschlag CJ at Eq found that the instrument did not create a valid, enduring power of attorney. Between amending the Act on 13 September 2013 and 21 February 2014, when the relevant regulation commenced, the form contained two errors.
- First, the fifth requirement was omitted from the prescribed s 19 certificate. Based on the ruling in Re A Power of Attorney, this omission raises questions about whether any form completed under the Regulations before 21 February 2014 was a valid enduring power of attorney.
- Second, the description of the prescribed witness was incorrect in some respects. A mistake likely to be less significant. The second error concerned inaccuracies in the description of a prescribed witness.
An issue less likely to affect practitioners who used the faulty form. However, Re A Power of Attorney highlights the need for practitioners to confirm that instruments prepared using the 2013 form comply with current legislative requirements.
Hammerschlag CJ at Eq held that the statement must be given contemporaneously with the execution of the instrument by the principal (at [25]); his Honour reasoned (at [24])
‘The apparent purpose and policy of the certification requirements is to set out a prescribed checklist of procedural steps that must be complied with by the witness in order to protect the integrity of the powers of attorney regime (which is capable of authorising a person to make significant decisions on behalf of another) and to ensure certainty as to when an enduring power of attorney is effectively created.’
Singer v No Defendant [2026] NSWCA 38
The applicant sought leave to appeal on the ground that Hammerschlag CJ at Eq erred in finding that the certificate required by s19(1)(c) of the Act must be given contemporaneously with the principal’s execution of the enduring power of attorney. The applicant also, for the first time on appeal, submitted that the instrument should either be construed to include the prescribed statement under s 19(1)(c)(iv) or be rectified in equity to include that statement.
The Court of Appeal (Griffiths AJA, Bell CJ and Adamson JA agreeing), granting leave and allowing the appeal held:
(1) The certificate required by s 19(1)(c) of the Act must be given contemporaneously with the execution of an enduring power of attorney by the principal: [25]. The text of s 19 of the Act is silent on when a compliant certificate must take effect for an enduring power of attorney to be created. That said, the apparent purpose and policy of the certification requirements is to set out a prescribed checklist of procedural steps that the witness must comply with to protect the integrity of the powers of attorney regime (which is capable of authorising a person to make significant decisions on behalf of another) and to ensure certainty as to when an enduring power of attorney is effectively created. If it were open for a witness to provide the requisite certificate well after the relevant instrument had been signed by the principal (as the applicant seeks to argue), the legislative purpose and policy would be undermined, particularly in light of:
- (1) the likely difficulties the witness may experience after the passage of time in recalling whether they had explained to the principal “the effect of the instrument” prior to its execution and whether “the principal appeared to understand the effect of the power of attorney” (s 19(1)(c)(i)-(ii)); and
- (2) the uncertainty as to the status of an instrument that has not satisfied the certification requirement to date but might do so at some unknown point in the future.
Hammersclag CJ at Eq correctly held that the certificate required by s 19(1)(c) of the Act must be given at the same time as the principal executes an enduring power of attorney.
Obvious linguistic or conceptual errors in an instrument can be corrected through construction if the parties’ true intention is clear. However, in this case, where words (necessary to create an enduring power of attorney) required by statute were mistakenly omitted —it would be inappropriate to read those words into the instrument:
First, regarding the construction argument, obvious mistakes on the face of an instrument can be corrected if the parties’ objective intention is clear, as seen in eg Zhong v Guan (2024) 116 NSWLR 258; [2024] NSWCA 300 at [23]-[38] (Kirk JA, Payne JA, and Price AJA agreeing).
But here, the issue is different. It involves the accidental omission of words that the statute mandates be included to establish an enduring power of attorney. The Court should not interpret the instrument as including the omitted s 19(1)(c)(iv) statement to meet the formal requirements for such powers.
Rectification in equity is appropriate and available. Re An Incapacitated Principal [2025] NSWSC 89, a recent example where the Court, exercising its protective and equitable jurisdiction, rectified an enduring power of attorney after the principal became mentally incapacitated. The correction involved adding a required statement that had been omitted due to a clerical error: see [18]-[19] and [39].
In Bird v DP (2024) 419 ALR 552, the High Court emphasised that, generally, the parties should settle substantial issues at trial, limiting issues on appeal unless they stem from evidence or admitted facts, or if the other party concedes they would present no different case.
In Re Gouder [2005] NSWSC 1116 the Court rectified a power of attorney. Mr and Mrs Ballardine (husband and wife) had powers of attorney, prepared both in favour of Mr Gouder. However, Mr & Mrs Ballardine mistakenly signed the others’ power of attorney instead of their own: at [2]. Gzell J made an order rectifying the instrument signed by Mr Ballardine, replacing Mrs Ballardine’s name with his name. His Honour held that an order for rectification will be made if the instrument, by error, does not record the agreement of the parties.
Lindsay J reasoned that the heading, “Enduring Power of Attorney,” the endorsement of a certificate as required by the Act, and the attorneys’ acceptance of their appointment suggested the principal intended the instrument to operate as an enduring power of attorney: at [23]. These clear indicators led his Honour to conclude, at [34], that
– the defendant genuinely intended the document to function as an enduring power of attorney when she signed it,
– and the attorneys, upon accepting their roles by signing, also intended it to be effective as such.
The instrument was therefore
“rectified by inserting the words’ I give this power of attorney with the intention that it will continue to be effective if I lack the capacity through loss of mental capacity after its execution”at [39].
In MacKenzie v Coulson (1869) LR 8 Eq 368 at 375, Sir William James VC
“Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts.”
It was traditionally believed that proving a valid antecedent agreement was necessary for rectification. However, Meagher, Gummow and Lehane’s ‘Equity Doctrines and Remedies,’ 4th edition, Butterworths LexisNexis, Australia, 2002, at 26-030, review the authorities and note that requiring the plaintiff to prove an antecedent contract is no longer tenable.
The core principle is simply that the document must reflect the parties’ true intentions. Although the power of attorney was executed as a deed poll, if an antecedent contract isn’t needed, there is no reason not to apply this principle. Mr Ballardine’s instrument mistakenly recorded his true intentions, stating it was made by Mrs Ballardine. His Honour saw no reason to deny rectification to replace ‘Mrs. Ballardine’ with ‘Jacques Ballardine’ in the instrument.
Equity has jurisdiction to correct a:
“discrepancy between [a] written instrument and a separately proven contrary common intention, which was intended to have been incorporated into the instrument” Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (2019) 99 NSWLR 317; [2019] NSWCA 11 at [15] (Leeming JA, with Payne and White JJA agreeing).
Although
“most frequently applied to address mistakes in contracts, the jurisdiction can encompass some instruments with a unilateral flavour, including deeds, trusts, and for present purposes, powers of attorney”
One G E Dal Pont, Powers of Attorney (4th ed, 2025, LexisNexis) at [5.58].
The general principles are well established and were summarised by Stern JA (Ward P and Price AJA agreeing) in SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 at [138]- [143]. All grounds of appeal listed in the appellants’ notice must be evaluated within the established principle that rectification is only granted in equity if there is clear and convincing evidence of the parties’ shared intention.
As the majority outlined in Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [103]- [104]:
“For relief by rectification, it must be demonstrated that, at the time of signing the written document, there was an “agreement”—meaning a “common intention”—and that the document was to reflect that agreement. Importantly, it must also be shown that the document fails to mirror this “agreement” due to a mutual mistake. Without these elements, the assumption that the document represents the true agreement cannot be overturned.”
The inquiry involves asking: what was the actual or true common intention of the parties? Express communication of this intention isn’t required; it must simply be the actual intention, viewed objectively from their words or conduct, and equally held by both parties.
For equitable rectification to be granted due to a common mistake, the following requirements must be met.
(1) At the time the written instrument was executed, the parties shared a common intention. Clear and convincing proof of this common intention is required.
(2) The written instrument was to conform to that common intention.
(3) But it did not do so because of a common mistake.
As McLelland AJA explained in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 345:
In general, the remedy of rectification of an instrument is available where it is established by clear and convincing proof that, at the time of execution, the relevant party or parties, as the case may be, had an actual intention (if more than one party, a common intention) as to the effect the instrument would have, which was inconsistent with the effect the instrument as executed did have, in some clearly identified way. In this context, ‘effect’ means the legal and factual operation of the instrument according to its true construction, but does not include legal or factual consequences of the operation of the instrument of a more remote or collateral kind (for example, its liability to stamp duty).
It is common ground between the applicant and the contradictor that the omission of the s 19(1)(c)(iv) statement was an obvious mistake and that the principal, prospective attorney, and witness all intended the instrument to have the effect of creating an enduring power of attorney.
The ineffectiveness of the instrument in creating an enduring power of attorney is far from being an unintended legal consequence of a remote or collateral kind, as referred to in Carlenka, where rectification would not be granted. The Court of Appeal saw no need to remit the matter to Hammerschlag CJ at Eq. The evidence clearly established a common intention between the principal, prospective attorney and witness to create an enduring power of attorney through the execution of the instrument, as well as a common mistake in the form of a failure to include the prescribed statement under s 19(1)(c)(iv) of the Act.
The prospective attorney and the applicant, who is the principal’s solicitor, deposed that:
(1) On 20 June 2017, the principal instructed him to prepare an enduring power of attorney which nominated him as her sole attorney;
(2) either he or another lawyer within his firm drafted the instrument using a precedent from his firm’s computer system;
(3) shortly after receiving the draft Instrument on 28 June 2017, the principal instructed the applicant that she wished to proceed with signing the documents;
(4) on 18 July 2017, the nominated witness and the principal met at the applicant’s office for the purpose of executing the enduring power of attorney, among other estate planning documents; and
(5) Prior to the New South Wales Land Registry Services issuing a requisition seeking rectification of the instrument, the applicant was unaware of any non-compliance by the instrument with the requirements of the Act.
Zhong v Guan (2024) 116 NSWLR 258; [2024] NSWCA 300, considered.
The witness testified that he met with the principal on 18 July 2017 at the applicant’s office to explain the enduring power of attorney and provide an independent witness certificate. He said that, because the documents had been prepared in advance, he assumed the certificate met the Act’s requirements. Although he did not recall many details of the discussion, he stated that his usual practice as an independent witness was to clarify that he was independent of the solicitor who prepared the documents and the prospective attorney, and that he was not being appointed as attorney.
The Court of Appeal held that it can reasonably be inferred that all parties shared a common intention at the time of signing to create an enduring power of attorney, which was inadvertently omitted from the document, as outlined in Seymour Whyte [12] (Leeming JA, Payne and White JJA agreeing).
Given these circumstances, the instrument should be rectified in equity to include the statement mandated by s 19(1)(c)(iv) of the Act. Additionally, following the Court’s directions on 19 March 2026, the applicant sought permission to file a further amended summons in the original proceeding and an amended summons to raise issues of construction and rectification.
The Court of Appeal recommend granting permission for both filings. Additionally it is appropriate to declare that, once rectified, the instrument constitutes a valid enduring power of attorney. No concerns were raised about potential prejudice to third parties or the applicant’s standing to seek this relief.
The applicant was ordered on 19 March 2026 to file an affidavit and supporting submissions in support of the request to anonymise the applicant’s and the principal’s names. While the Court of Appeal favoured anonymising the principal’s name in the interests of justice, given that this person no longer has capacity and the case was on the Protective List it saw no reason to do so concerning the applicant.
The applicant requested that his costs be paid on an indemnity basis from the principal’s estate, drawing an analogy to a trustee’s right to indemnity when seeking judicial advice. However, this analogy is overstated. The applicant overlooks cases where a trustee has been denied indemnity for conduct causing the litigation, such as Re Schoenmakers (No 2) [2013] VSC 658, where the trustee was ordered to pay the defendant’s costs and to cover its own. In this case, with no defendant involved, the Court of Appeal believed the applicant should bear his own costs. As the litigation was initiated solely due to the applicant’s failure to ensure the certificate complied with s 19(1)(c)(iv) of the Act.
On appeal, it was suggested that the certificate could be construed so as to include the missing words. However, the Court observed (at [28]) that the issue:
‘involves the mistaken omission of words which, by virtue of statute, needed to be included in the relevant instrument to create an enduring power of attorney. It would be inappropriate for the Court to read into the instrument the words of the omitted s 19(1)(c)(iv) statement to find that the formal requirements for the creation of an enduring power of attorney have been met.’
Another alternative was to rectify the EPoA. Rectification is generally available when it can be shown by clear and convincing evidence that, at the time of execution, all relevant parties intended the instrument to have a certain legal effect, but because of a common mistake, the written document failed to accurately reflect that intention. In this context, equity will intervene to correct the document, provided there is a proven common intention and a corresponding mistake. The Court granted leave to appeal and allowed the appeal.
The Court of Appeal decided that rectification in equity was available and appropriate in the particular circumstances of the case, where there was a clearly established common intention between the principal, prospective attorney and witness to create an EPoA through the execution of the instrument, and a common mistake in the failure to include the prescribed statement under s 19(1)(c)(iv) of the Act (at [39]).
In addition to seeking rectification, attorneys concerned about a defective s 19 certificate should consider the potential application of s 31 (confirming powers) and s 38 (advice or directions) of the Act. Practically, if practitioners discover a defect in a power of attorney instrument, such as a missing or incomplete certificate, they should take the following steps:
1. Carefully review the instrument to identify the precise nature of the defect and determine whether it relates to compliance with statutory requirements under s 19.
2. Promptly seek legal advice to assess the available remedies and ensure any action taken is appropriate in light of the client’s interests and circumstances.
3. Where there is clear evidence of the parties’ common intention, an application can be made to the Supreme Court for rectification of the instrument to correct the defect.
4. Alternatively, practitioners may consider applying to the Court for orders under s 31 to confirm the power of attorney, or seeking advice or directions from a review tribunal under s 38.
5. If the principal has not yet lost capacity, practitioners should act quickly to correct any defects while the principal is able to re-execute a compliant instrument if necessary.
6. In all cases, practitioners should keep detailed records of their actions and communications with all parties involved.
Following these steps helps to reduce the risk of invalid or ineffective instruments and ensures that the integrity of the enduring power of attorney regime is preserved.
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