Signing and Witnessing a Power of Attorney

If you’ve checked out our other guides, you’ll be familiar with the two types of power of attorney documents – that’s an enduring power of attorney and a general power of attorney. 

Today, we’re lifting the lid on all-things signing and witnessing the humble power of attorney – POA for short. Ready to dive in?

Let’s do it.

Does a power of attorney signature need to be witnessed

It depends on what kind of power of attorney we’re dealing with. See, in the case of an enduring power of attorney, two adult witnesses are required. One of them must be authorised to witness affidavits or a registered medical practitioner.

What about a general non-enduring power of attorney?

Well, in Victoria, a general non-enduring power of attorney doesn’t need to be witnessed… unless the principal is unable to sign the form. If this happens, they can direct another person to fill in and sign the form on their behalf. The substitute signer, along with two witnesses, needs to sign the form in front of the person. A special witness like a Justice of the Peace Officer (or a JP, as they are commonly known) is needed in this case.

Who can’t witness a power of attorney?

Certain people are unsuitable to act as witness to a power of attorney. They include:

• A relative of the person making the appointment
• A person who is being appointed (i.e, an attorney or alternative attorney), or their relative
• A care worker or accommodation provider for the person making the appointment.

Can I witness a power of attorney remotely or electronically?

The Powers of Attorney Act 2014 allows for enduring powers of attorney to be electronically signed and witnessed with all persons in separate spaces connected by audiovisual link. Since remote witnessing is complex and involves some practical difficulties, in-person witnessing is highly recommended.

Note: Advance care directives and appointments of medical treatment decision-makers must be witnessed in person. 

Checklist for witnesses

If you have been asked to be a witness, the task is not as simple as signing a piece of paper. Here is a checklist to follow to ensure that everything is in order:

1. Check that you are the right person to witness the document

Individuals such as relatives or accommodation providers (for example) are unable to act as witnesses, so double-check that you are eligible to avoid problems down the line.

2. Certify that the person has decision-making capacity

As a witness, it is your responsibility to confirm that the person creating the power of attorney is doing so freely and voluntarily, without any external influence. It is a good idea to have a private conversation with them without anyone they are appointing present. Ask questions to ensure their understanding of the decision and the implications of creating a power of attorney.

These questions may include:

• When does the enduring power of attorney come into effect?
• Once the power begins, your appointed attorney will have the same legal authority as you to make decisions about financial and personal matters. Do you grasp this concept, and do you agree with it?
• You have the option to set conditions on the power you grant to your attorney and provide specific instructions. Are you aware of this, and would you like to include any conditions or instructions?
• Please confirm that you understand you can revoke (cancel) the power of attorney at any time while you still can make decisions.
• The enduring power of attorney remains valid even if you lose decision-making capacity in the future. Do you accept this condition?
• If there comes a time when you lack decision-making capacity, you won't be able to effectively oversee the use of the power. Is this clear to you?

3. Watch as the person signs in front of you

While these instructions might seem straightforward, sometimes surprises happen! If you've gone through the questions above and feel confident that everything is in order, and everyone involved understands the process, the next step is for the person to sign in your presence and the presence of the other witness.

Following that, both witnesses sign and date the certification to confirm the process.

Wrap up

As a witness, you are there to certify that the applicant:

• Has decision-making capacity
• Understands nature and effect
• Freely and voluntarily signs

… and lastly, that you are eligible to act as the witness!

If you require help arranging a Power of Attorney, reach out to our approachable and knowledgeable Willed team. They are here to address all your questions and concerns, guiding you through the process with a reassuring and gentle approach. Contact us today.

Found this blog helpful? Here are some others to get stuck into:

• Who Should I Choose as my Power of Attorney?
• Can I Renounce my Role as a Power of Attorney?
• When Power of Attorney Goes Wrong
  

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, medical, accounting or tax advice.