Who Can Witness an Enduring Power of Attorney?

It depends on where you live. Each Australian state and territory sets its own rules for witnessing an enduring power of attorney: how many witnesses, who qualifies, and who is excluded. Some states require a lawyer or similar professional, some accept a JP, and some require two witnesses. Check your state's current form and guidance before anyone signs.

Key takeaways

• There is no national rule. The number and type of witnesses for an enduring power of attorney differ between states and territories.
• Almost everywhere, the attorney cannot witness, and relatives of you or your attorney are often excluded too.
• Witnesses usually certify that you appeared to understand the document and to sign freely, not just that you signed.
• Some states name a narrow class of witness, such as a lawyer. In others, a JP or a person authorised to witness statutory declarations qualifies.
• An Australian enduring power of attorney is a domestic document. For property overseas, the other country usually needs its own document.

Why do enduring powers of attorney have strict witness rules?

An enduring power of attorney lets someone you choose manage your financial affairs, and it keeps working if you later lose the capacity to make decisions. That is exactly when you can no longer check what your attorney is doing, so the moment of signing is the main safeguard. Witnesses are there to confirm that you knew what you were signing, that you were not pressured, and that the person signing really was you.

For that reason, the rules are applied strictly. A document witnessed by the wrong person, or with the wrong number of witnesses, may be refused by a bank, a land registry or a tribunal at the very moment your family needs it. Getting the witnessing right costs little; fixing it later may be impossible if you have already lost capacity. Our guide to powers of attorney explains the different kinds.

How do the states and territories differ?

The broad shape of each jurisdiction's rules is set out below. These rules change from time to time, and each has details not shown here, such as which forms to use and exactly who is excluded. Treat the table as a starting point and check the current form and guidance from the relevant state body, or a lawyer, before signing.

Jurisdiction	General shape of the witness rule	Where to check
NSW	A prescribed witness, such as a solicitor or certain court officers; a JP generally does not qualify	NSW Trustee and Guardian
Victoria	Two adult witnesses, one from a special class such as an affidavit taker or doctor	Office of the Public Advocate
Queensland	An eligible witness, such as a JP, Commissioner for Declarations, lawyer or notary	Queensland Government guidance
Western Australia	WA's own requirements for number and type of witnesses	WA Office of the Public Advocate
South Australia	An authorised witness under SA law, such as a JP or lawyer	SA Government guidance
Tasmania	Tasmania's witness rules, and registration before use	Land Titles Office
ACT	Two adult witnesses, one authorised to witness statutory declarations	ACT Public Trustee and Guardian
Northern Territory	An advance personal plan, witnessed by an authorised witness	NT Government guidance

Who usually cannot be a witness?

Most jurisdictions exclude people who could benefit from the document or influence you. The person you are appointing as attorney can almost never witness it. Many jurisdictions also exclude relatives of you or of your attorney, and some exclude paid carers or people who provide your accommodation. A witness usually has to be an adult, and must actually see you sign.

The safest approach is an independent witness from the class your state names, with no family or financial connection to you or your attorney. If you are unsure whether someone qualifies, check the current guidance before the appointment rather than after. Our guide to how a notary checks capacity and duress explains what a careful witness looks for.

What does the witness actually certify?

In most jurisdictions, witnessing an enduring power of attorney involves more than watching you sign. The witness usually completes a certificate on the form, stating that you signed in their presence, that you appeared to understand the nature and effect of the document, and that you appeared to sign freely and voluntarily. In some places the witness must also explain the document to you or confirm that you had it explained.

That certificate is what banks, registries and tribunals rely on if the document is later questioned. A careful witness will ask you a few questions about what the document does, who your attorney is and when they can act. If you have any doubt about your capacity, for example because of a medical condition, a doctor's assessment around the time of signing can help. For complex situations, see a lawyer first.

Can a JP witness an enduring power of attorney?

In some jurisdictions, yes; in others, no. Queensland and South Australia, for example, include JPs among the people who can generally witness, and in the ACT and Victoria a JP can be one of the two witnesses if they meet the rules. In NSW, by contrast, a JP is generally not an eligible witness for an enduring power of attorney, which surprises many people.

So do not assume a JP will do because they witness other documents. Check your state's current list first. Our guide to notaries and JPs explains what JPs do generally.

Can a notary witness an enduring power of attorney?

A notary is almost always also a lawyer, and lawyers are among the eligible witnesses in most jurisdictions, so a notary will usually qualify. But for a purely Australian enduring power of attorney, you do not need a notary as such: the state's list of witnesses is what matters. A notary becomes important when a power of attorney is going overseas.

Does an enduring power of attorney work in another state?

Generally, each state and territory recognises enduring powers of attorney made in other Australian jurisdictions, at least to the extent that the document could have been made under its own law. In practice, banks and land registries in another state may still ask questions, particularly about the witnessing. If you own property in more than one state, or expect to move, ask a lawyer whether your document will be accepted where it may be needed.

Does an Australian enduring power of attorney work overseas?

Usually not on its own. An Australian enduring power of attorney is a domestic document made under Australian state law, and most foreign banks, land registries and courts will not act on it. If you need someone to deal with property or accounts overseas, the other country normally needs its own document, drawn up to its requirements, often signed before an Australian notary and then apostilled or authenticated by DFAT.

Get the wording from a lawyer in that country before signing anything, because the form of a foreign power of attorney varies widely. Check the country's position on the HCCH status table to see whether an apostille or legalisation is needed. Our guide to international powers of attorney explains the process.

What if you are overseas when you need to sign?

If you live abroad but want an Australian enduring power of attorney, for example for property in Australia, the state's rules on who may witness it outside Australia apply, and they differ. Some accept Australian consular officers or notaries in the country where you are; others set particular requirements. Check the state guidance, or ask an Australian lawyer, before signing overseas. Our guide to Australian embassy notarial services covers consular witnessing.

How do you prepare to sign?

1. Use the current form for your state or territory, and read its notes in full.
2. Check who may witness, how many witnesses you need, and who is excluded.
3. Arrange the witnesses together, if two are required, so both see you sign.
4. Bring photo identification, and be ready to answer questions about the document.
5. Complete any registration step, such as in Tasmania, and keep the original safe.

What does this look like in practice?

Here is an illustration, not a real case. Margaret lives in Sydney, and her son lives in Brisbane. She assumes her local JP can witness her enduring power of attorney, because a JP witnessed her statutory declarations.

Reading the NSW guidance, she finds that a JP is generally not an eligible witness in NSW. She makes an appointment with a solicitor instead, who explains the document, confirms she understands it, witnesses her signature and completes the witness certificate. Her son later uses it to deal with her bank without difficulty.

In short

Who can witness an enduring power of attorney depends on your state or territory: some require a lawyer or similar professional, some accept JPs, and some require two witnesses. The attorney, and often relatives, cannot witness, and the witness usually certifies your understanding and free will. Use the current form, check the witness rules before signing, and remember that assets overseas usually need their own document.

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