When a Single Missing Line Voids a Power of Attorney: Lessons from the NCAT Guardianship Division Case Digest

Every six months, NCAT's Guardianship Division publishes a Case Digest, a curated summary of significant decisions involving financial management orders, guardianship orders, medical consent, and enduring power of attorney reviews. Quietly circulated to legal practitioners, aged care providers, and disability services workers, the Digest offers one of the clearest windows available into the real-world consequences of inadequate planning for incapacity.

Issue 1 of 2026, released in mid-2026 and covering decisions from late 2025 and early 2026, contains a number of decisions that are directly relevant to individuals and families navigating estate planning, business succession, and aged care arrangements. One case in particular, a NSW Court of Appeal decision that has received little mainstream attention, deserves to be better known by anyone who holds or relies upon an Enduring Power of Attorney.

A Single Missing Statement, A Decade of Uncertainty

In 2017, a man executed an instrument intended to create an Enduring Power of Attorney (EPoA), appointing his attorney to manage his affairs should he later lose capacity. The instrument was witnessed and signed. It appeared, on its face, to be in order. The principal went about his life, presumably satisfied that his affairs were arranged.

Five years later, in 2022, the principal had lost capacity. His attorney attempted to use the EPoA to deal with a property transaction and lodged the instrument with NSW Land Registry Services. The lodgement was rejected. The reason: the certificate attached to the EPoA, the document required to be signed by the witness confirming that they had explained the instrument to the principal and that the principal appeared to understand it was missing a single mandatory statement. Specifically, it did not include the declaration required by section 19(1)(c)(iv) of the Powers of Attorney Act 2003 (NSW) confirming that the witness was not an attorney under the power.

Without that statement, the instrument was not a valid Enduring Power of Attorney. The principal, now incapacitated, could not execute a new one. The attorney could not manage the property. The situation was, in practical terms, frozen.

The matter ultimately reached the NSW Court of Appeal in Singer v No Defendant [2026] NSWCA 38, decided on 26 March 2026 and reported in the NCAT Guardianship Division Case Digest Issue 1 of 2026. The Court confirmed that there was no power under the Powers of Attorney Act to fix the defective certificate by adding the missing words retrospectively. However, and this is the critical finding the Court held that the instrument could be rectified using the court's equitable jurisdiction. Because it was plain that all parties (the principal, the attorney, and the witness) had intended to create a valid EPoA, the Court found that the omission was a mistake, not a deliberate choice, and rectified the instrument accordingly. The EPoA was declared valid.

The outcome was a good one. But it required an application to the Supreme Court, an appeal to the Court of Appeal, legal costs across multiple proceedings, and years of uncertainty during which a property transaction was stalled. All of it arose from a single line missing from a witness certificate.

What Section 19 Actually Requires

The Singer case is a reminder that an Enduring Power of Attorney is not a document that can be casually prepared or self-executed without understanding the technical requirements. Section 19(1) of the Powers of Attorney Act 2003 (NSW) is precise in what it demands. For an instrument to operate as an EPoA, the witness must endorse or annex a certificate that states, in substance, each of the following:

• That the witness explained the effect of the instrument to the principal before it was signed;
• That the principal appeared to understand the effect of the power of attorney;
• That the witness is a prescribed witness (that is, an eligible witness under the Act typically a solicitor, barrister, or other prescribed professional);
• That the witness is not an attorney under the power of attorney; and
• That the witness witnessed the signing of the power of attorney by the principal.

Every element of that certificate must be present. The Court of Appeal in Singer confirmed that section 19(1) uses conditional language – an instrument creates an EPoA "if" these requirements are satisfied, reflecting a legislative intention that full compliance is required. The presence of four out of five required statements is not enough.

The Court also confirmed that the certificate must be given contemporaneously with execution of the instrument. It cannot be completed retrospectively after the principal has lost capacity, because the purpose of the certificate that the witness explains the instrument to the principal and the principal appears to understand it cannot be satisfied after capacity is lost.

Financial Management Orders: Strata Levies and the Limits of Informal Arrangements

The Case Digest also reports a decision that will be of direct interest to anyone involved in strata property management or acting as a co-owner of a unit in NSW.

In Thomas (a pseudonym) [2025] NSWCATGD 22, the Tribunal made a financial management order committing the management of Thomas's estate to the NSW Trustee and Guardian. Thomas was in his late 70s, living alone, and had failed to pay strata levies on two properties, one his own and the other owned by his late mother's estate (of which Thomas was sole executor and beneficiary) for an extended period. Bankruptcy proceedings had been commenced against him. A consultant who visited Thomas's home found him apparently unable to progress his financial matters due to health issues. Thomas did not appear at the hearing or submit any evidence.

Two legal questions arose. First, whether the applicant, a solicitor acting for the owners' corporation, had standing to bring the application. The Tribunal confirmed that a person bringing a financial management application need not be motivated solely by concern for the subject person's welfare; it is sufficient that the applicant is sincerely bringing to the Tribunal's attention a situation which may call for intervention in the person's interests. The existence of a commercial motivation (recovering strata levies) did not disqualify the applicant from having genuine concern for Thomas's welfare as well.

Second, and more significantly, the Tribunal confirmed that the failure to pay strata levies was evidence of incapacity to manage financial affairs, not merely irresponsibility or disorganisation. The accumulation of debt, ongoing exposure to bankruptcy, and apparent inability to engage with basic financial obligations was sufficient to establish that Thomas lacked "the functional capacity to address the issues requiring management" in a way operating adversely to his best interests.

The practical lesson is a confronting one. For property owners who are failing to manage their affairs, whether due to cognitive decline, health deterioration, or social isolation — the consequences can reach them through unexpected channels. A strata management company, a creditor, or even a building manager may have sufficient grounds and motivation to bring a financial management application before NCAT, irrespective of what family members may prefer.

Attorneys Acting Beyond Their Authority

A third decision in the Digest raises a recurring concern in estates and elder law practice: attorneys who use their position to make payments to themselves, or to obtain informal compensation from a principal's funds, without clear authority to do so.

In Tom (a pseudonym) [2025] NSWCATGD 18, Tom had appointed his stepson Ray as his sole attorney under an EPoA. The instrument expressly did not permit Ray to make gifts to himself. Between 2017 and Tom's death in 2022, Ray made withdrawals from Tom's bank accounts totalling approximately $40,000 including amounts labelled "compensation" and "historical compensation" which Ray said represented reimbursement for expenses he had incurred on Tom's behalf.

After Tom's death, three of his grandchildren applied to NCAT for a review of the EPoA, seeking orders that Ray produce accounts and have his transactions audited. The Tribunal declined to exercise its discretion to conduct a review principally because there was no independent evidence that Tom had lacked capacity to authorise the transactions Ray said he had and because Tom's own behaviour (appointing Ray as attorney in 2007 and as executor in 2010) suggested a relationship of genuine trust that would not be served by retrospective intervention.

However, the case illustrates a problem that appears with regularity in the Guardianship Division: informal arrangements between principals and attorneys, including verbal authorisations of payments that were never documented, that leave family members with legitimate but ultimately unprovable concerns about the use of estate funds. The absence of proper record-keeping by an attorney does not necessarily establish wrongdoing, but it makes any subsequent review substantially more difficult, and it puts well-intentioned family members in the position of having serious questions with insufficient evidence to pursue them.

The Equity Jurisdiction as a Safety Net But Not a Substitute for Good Drafting

The Singer case demonstrates that NSW courts retain an equitable jurisdiction to rectify defective instruments in appropriate cases. Where a mistake is clear, the parties' intentions were plain, and the defect was inadvertent, the court may intervene to give effect to what was actually intended.

But this jurisdiction is a safety net, not a substitute for properly executed documents. The remedy was not cost-free, quick, or certain. It required litigation up to the level of the Court of Appeal. There may be many cases, particularly where the defect is less obvious, the evidence of intention less clear, or the principal's mental state more ambiguous, where the equitable remedy would not be available or would not be granted.

The same principle applies across the range of cases in the Digest. Courts and tribunals can and do intervene to address the consequences of inadequate planning. They appoint financial managers for people who can no longer manage their affairs. They review and revoke defective enduring instruments. They authorise medical treatment where families cannot agree. They deal, one case at a time, with situations that could have been avoided by better preparation.

The volume of applications before NCAT's Guardianship Division and the regularity with which significant issues arise in each six-monthly Digest tells its own story. Incapacity is not a rare event. It is a predictable feature of the human life cycle, and it requires planning that anticipates not just the documents but the people and the relationships involved.

What Every NSW Resident Should Check

Following the Singer decision and the pattern of cases in the Guardianship Division Case Digest, there are three questions that every adult in NSW should be able to answer:

Do I have an Enduring Power of Attorney and has it been properly executed? If an existing EPoA was prepared years ago, it is worth having it reviewed to confirm that the witness certificate is complete and compliant with current requirements under the Powers of Attorney Act 2003 (NSW). Instruments prepared before legal requirements were fully understood, or before prescribed witness requirements were clarified, may contain defects that would only become apparent when the document is needed, and by then, it may be too late to fix them without litigation.

Are the attorneys named in my EPoA still willing and able to act? An attorney who has predeceased the principal, lost their own capacity, or moved overseas may be unable to act when needed. EPoAs should nominate one or more substitute attorneys to ensure continuity.

Are my attorneys keeping records? The cases in the Digest are a reminder that attorneys have obligations of accountability. Any attorney managing a principal's financial affairs should keep clear records of all transactions, including the basis on which each was authorised. The absence of records does not establish wrongdoing, but it creates uncertainty that can generate expensive and distressing disputes for the families left to manage an estate after the principal has died.

Shire Legal is a boutique law firm based in Miranda, NSW, specialising in property, business and estates law. This post is intended as general legal information only and does not constitute legal advice. You should seek advice specific to your circumstances before taking any action. References to cases in the NCAT Guardianship Division Case Digest are paraphrased from that publication; readers should consult the original decisions on NSW Caselaw for the authoritative text.