Appointing a Power of Attorney (POA) is a big decision, as the person you nominate will be tasked with managing your financial affairs. Like many legal documents, you also need someone to witness a power of attorney document.
Properly executing your Power of Attorney document is crucial to ensuring that it’s valid. One aspect of proper execution is ensuring that a valid witness is present. A witness is required to ensure that individuals signing the POA are in fact who they say they are. Further, a witness is required to ensure that the signatories have capacity and understand the document that they are signing.
Because requirements may differ between states and their legislative counterparts, identifying witness requirements can be confusing. This article provides a straightforward comparison of all state and territory power of attorney witnessing requirements.Â
Table of Contents
What is a Power of Attorney?
A power of attorney (POA) is an important legally binding document which allows an individual (known as the principal) to grant another individual authority over their financial decisions. Your POA cannot make decisions involving your health or personal affairs. POAs are normally appointed when someone goes overseas, or decides it is best for someone else to manage their affairs. Further, a POA does not need to be a lawyer – just someone you trust.
There are broadly two categories of POA being a general power of attorney and an enduring power of attorney.
General POA
This document will cease to operate when you lose the mental capacity to make a financial decision. You can also appoint them for a specific period of time. For example, you may wan to appoint a General POA for 6 months while you are overseas.
Enduring POA
This document will continue to exist even if you lose capacity. Mental capacity may deteriorate due to dementia, stroke or various other brain injuries.
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Who can witness a power of attorney document?
Among the differing states and territories there are four general categories which witnessing requirements can be grouped within. They are:
Who can be a witness
The legislation sets out the boundaries for the type of person that can be a qualified witness. For example, some states and territories qualify that a Register of the Court can also be a witness for a power of attorney document.
Who can’t be a witness
These statutory provisions set the boundaries of who can witness a power of attorney document. Most of the jurisdictions specifically state that a witness cannot be the attorney under the power of attorney document. This is to ensure that a valid third party is present to accept that no party is signing under coercion or further, abusing any sort of power.
The number of witnesses required
Some jurisdictions require only one witness while some jurisdictions require two witnesses. In most cases, a witness need to be at least 18 years of age and also have full legal capacity.
If a witness needs to provide a certification
Some states and territories outline that a witness has a statutory duty to certify that the principal appeared to have the capacity necessary to make the document. If the Witness has doubts about the principal’s ability to understand what they are signing, they are required to take reasonable steps to confirm their mental capacity.
| Legislation | What a Witness Can Be | What a Witness Cannot Be | Certificate? | |
| QLD | Powers of Attorney Act 1998 (QLD) | Only one witness is required. They can be: - Justice of the peace - Commissioner for declarations - Notary public - Australian lawyer | A witness cannot be: - the principal - the attorney - not a relation of the principal or attorney - not a paid carer or health provider of the principal | If there is a reasonable likelihood of doubt of a principal capacity to understand the document entering into, it is advisable for the witness to make a written record of the evidence. |
| NSW | Powers of Attorney Act 2003 No 53 (NSW): Section 19 | Only one witness is required. A General Power of Attorney can be witnessed by anyone over the age of 18 years who is not an attorney appointed under the document. For an enduring power of attorney: - Register of the Court - Barrister or Solicitor - legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner - Can be a licensed conveyancer - Can be a trustee guardian employee | - Cannot be an attorney under the power of attorney | The legislation requires that there is a certificate by the witness stating that: (i) the witness explained the effect of the instrument to the principal before it was signed; (ii) the principal appeared to understand the effect of the power of attorney; and (iii) the person is not an attorney under the power of attorney. |
| VIC | Powers of Attorney Act 2014 | Must have two witnesses over the age of 18. One witness must be: - someone authorised to witness affidavits; or - a medical practitioner. | Both witnesses must: - not be an attorney under the enduring power of attorney - not be a relative of the principal (the person making the enduring power of attorney) or relative of an attorney (the person or people appointed by the principal) - not be a care worker; or accommodation provider for the principal. | A witness in creating an enduring power of attorney must certify in writing in the instrument: (i) the principal appeared to freely and voluntarily sign the instrument; and (ii) the principal appeared to the witness to have decision making capacity in relation to the making of the enduring power of attorney. |
| WA | Guardianship and Administration Act 1990 (WA) | Must be two witnesses: - At least one witness must be authorised by law to make declarations and; - The other must have a qualification of being at least 18 years old and who is not appointed to be attorney. | If second witness is not not authorised by law to make declarations then that person must be over 18 and cannot be the appointed attorney. | Does not specify |
| TAS | Powers of Attorney Act 2000 (TAS) | In an enduring power of attorney there will need to be - two people who are not a close relative to either the donor or the attorney(s); and - each witness must be in the presence of the donor and each other. In the case of any other power of attorney there will need to be - a witness who is not a party to it and who witnesses it in the presence of the donor | In the case of an enduring power of attorney, the witnesses must include a declaration that he or she is neither a party to the enduring power of attorney nor a close relative of a party to it. | |
| NT | Power of Attorney Act 1980 (NT) and Power of Attorney Regulations 1982 (NT) | - a commissioner for oaths - a member of the Legislative Assembly - a legal practitioner - a person holding office under the Supreme Court Act 1979 Justices of the Peace Act 1991 Local Court Act 2015 or Registration Act 1927 - a police officer - a person licensed as a conveyancing agent or real estate agent - a Notary Public - any other person approved by the Registrar-General | A person who witnesses an instrument creating an enduring power under section 6(4) must not be a party to the instrument or near relative of the donee of the power. | |
| ACT | Powers of Attorney Act 2006 (ACT) | Two witnesses are required. - Only one of the witnesses can be a relative of the principal or appointed attorney. - For an enduring power of attorney, one witness must be a person authorised to witness the signing of a statutory declaration. | - a person signing the power of attorney for the principal; or - a person appointed as attorney under the power of attorney; or - a child | The power of attorney must include a certificate signed by each witness stating that - the principal signed the power of attorney voluntarily in the presence of the witness; and - at the time the principal signed the power of attorney, the principal appeared to the witness to understand the nature and effect of making the power of attorney |
| SA | Powers of Attorney and Agency Act 1984 (SA) | - Must be authorised by law to take affidavits |
Finally
A Power of Attorney isn’t legally valid if it is not witnessed. Therefore, it’s important to understand what the legal requirements are in your jurisdiction. If you have further questions surrounding this, it may be wise to get in touch with an Estate Planning Lawyer.
