Whitney v. National Australia Bank Ltd

In the Supreme Court of Queensland, the case of Whitney v. National Australia Bank Ltd dealt with the validity of an Enduring Power of Attorney (EPA) under the Powers of Attorney Act 1998. The applicant, Timothy Clifton Whitney, sought declarations that the EPA executed by Mrs Shirley Murphy on 17 March 2003 could be exercised by him and his co-attorney, Ross Walker, despite the principal's loss of capacity before the acceptance of their appointments. The National Australia Bank, the respondent, contested the validity of the EPA, arguing that Mrs Murphy lacked capacity when the attorneys accepted their roles.

The central legal issue before the court was whether an attorney could validly accept and exercise an EPA if the principal had lost capacity between the execution of the EPA and the attorney's acceptance. The court needed to determine if the delay in acceptance by the attorneys invalidated the EPA and whether the Bank's refusal to recognize the EPA was justified. The court examined the provisions of the Powers of Attorney Act, particularly sections 41, 44, and 32, to ascertain the validity of the EPA and the conditions under which it could be exercised.

The court held that an EPA is validly executed when it meets the formal requirements, including being in an approved form, signed by the principal, and witnessed. It noted that the principal must have capacity when the EPA is made, but the loss of capacity after the EPA is executed does not invalidate the document. The court found that the EPA was validly executed on 17 March 2003 and that the attorneys' acceptance of their appointments on 16 October 2007 did not affect the validity of the EPA. It also concluded that the Bank's refusal to recognize the EPA was unjustified, as it failed to consider relevant authorities and did not seek an explanation for the delay in acceptance. Consequently, the court ordered that the EPA could be exercised by the attorneys and that the Bank should pay the applicant's costs of the application.