Key Risk Checklist: Witnessing an Enduring Power of Attorney

23 September, 2015
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Witnessing an Enduring Power of Attorney


Date:                        | Time commenced:                        | Time finished:                        | Location:                        


In attendance

Principal:                                                | Solicitor:                                                | Other witness:                        


☐  Photo identification of principal.
– Specify form of identification produced eg driver’ s licence, passport

☐  Principal over 18 years of age.

☐  Principal has read pages 3-18 of the of the booklet entitled Take Control – a kit for making powers of attorney and guardianship published by the Department of Justice (Vic) at http://www.publicadvocate.vic.gov.au/index.php/our-services/publications-forms/enduring-powers-of-attorney/enduring-power-of-attorney-publications/89-take-control

☐  Current medical certificate produced to me (if applicable).
– Specify medical practitioner’ s name and address
– Attach copy of medical certificate to these notes

☐  Principal stated to me that they were signing the power of attorney freely and voluntarily.

☐  Interpreter used (if applicable) and certificate signed by interpreter obtained.
– Attach interpreter’ s certificate to these notes

The following concepts were discussed with the principal:

☐  I explained to the principal that an enduring power of attorney allows the person they have nominated (the attorney) to make financial and/or personal decisions for them subject to any limitations or conditions or instructions they have included in the enduring power of attorney. I also discussed any limitations or conditions or instructions included in the subject enduring power of attorney.

☐  I asked the principal to tell me what they understood my explanation to mean.
– Record what the principal’s response was

☐  I told the principal that they can specify a time or event when the enduring power of attorney starts to operate and/or finishes.

☐  I discussed when the subject enduring power of attorney will start and end.

☐  I asked the principal to tell me what they understood my explanation to mean.
– Record the principal’s response

☐  I explained to the principal that once the enduring power of attorney commences the attorney can stand in the donor’s place and do anything the donor could do (eg financial: withdraw money from the donor’s bank account, mortgage the donor’s property, sell the donor’s property; eg persona: choose where they live), subject to any limitations in the power.

☐  I asked the principal to tell me what they understood my explanation to mean.
– Record the principal’s response

☐  I explained that the principal may revoke or cancel the power of attorney as long as they had the legal capacity to do so.

☐  I explained that if the principal lost legal capacity they could not revoke a power or appoint a new attorney.

☐  I asked the principal to tell me what they understood my explanation to mean.
– Record the prinipal’s response

☐  I explained that an attorney can continue to deal with the principal’s affairs and act in their name after the donor has lost legal capacity.

☐  I asked the principal to tell me what they understood my explanation to mean.
– Record what the principal’ s response was

☐  I believe the client understood the information relevant to making the power of attorney (the decision) and the effect of the decision to make an enduring power of attorney.

☐  The client appeared to be able to retain that information for the purpose of making the decision.

☐  The client appeared to be able to use and weigh that information as part of the process of making the decision.

☐  The client was able to communicate the decision and their views about the decision to me.

☐  Any other comments on capacity.