Enduring powers of attorney are among the most common documents prepared by Victorian solicitors. Courts enforce mandatory witnessing and certification requirements exactly. Even a single omission can invalidate the instrument. This article sets out what practitioners must do, and when, to get execution right every time.
A client asks you to prepare an enduring power of attorney. The document is signed, witnessed and filed. Months later, when the client has lost capacity and the attorney needs to act, a bank or tribunal rejects the instrument because one witness certification was incomplete. The client's family must now apply to VCAT or the Supreme Court to resolve the problem, and your firm faces a negligence claim.
Enduring powers of attorney are among the most common documents prepared by Victorian solicitors. Courts enforce mandatory witnessing and certification requirements exactly. Even a single omission can invalidate the instrument. This article sets out what practitioners must do, and when, to get execution right every time.
Why execution errors happen
The Powers of Attorney Act 2014 (Vic) (POA Act) is highly prescriptive, and a single missed certification or signature renders the instrument invalid.
In Singer v No Defendant [2026] NSWCA 38, the New South Wales Court of Appeal held that an enduring power of attorney was invalid because the witness certificate omitted one mandatory statement: that the witness was not an attorney under the instrument. The fact that the omission was inadvertent was irrelevant. The existence of section 80 of the Interpretation Act 1987 (NSW) making strict compliance with a form not necessary did not save the instrument. The court did however allow equitable rectification based on common intention and common mistake. The result required two Supreme Court proceedings, and the costs were borne by the applicant.
While this was a NSW decision, the Victorian POA Act imposes comparable mandatory requirements.
What the Act requires: witness certifications (section 36)
When witnessing a principal's signature on an enduring power of attorney, the witness must certify and state the following in writing in the instrument and sign the document.
|
Requirement |
What the witness must include |
|
Free and voluntary signing |
A certification that the principal appeared to freely and voluntarily sign the instrument in the witness's presence |
|
Decision-making capacity |
A certification that the principal appeared to have decision-making capacity at the time of signing |
|
Disqualification statement |
A statement that the witness is not:
|
|
Qualification (if applicable) |
If the witness is a person authorised to witness affidavits or a medical practitioner, a statement of the qualification relied on |
|
Witness signature |
The witness's own signature on the certification and statement |
If any row in this table is missing from the instrument, the enduring power of attorney may be invalid.
Remote witnessing: additional requirements (section 5A)
Section 5A of the POA Act permits remote witnessing by audiovisual link but imposes a detailed additional procedure. The following requirements apply on top of the standard section 36 certifications.
