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.
What to do: five actions anchored to your workflow
- Open your firm's enduring power of attorney precedent and confirm that the execution and witnessing pages include every certification and statement required by section 36.
- Attach the LPLC's witnessing checklist to every power of attorney file at file opening. Add the checklist to your file-opening procedure or practice management system workflow so it is present before the witnessing appointment, not sourced afterwards.
- Complete the checklist during the witnessing appointment, not after it. The witnessing practitioner should work through each item on the checklist in real time as the principal and witness sign. Do not rely on memory or post-execution review.
- If executing remotely, use the remote execution portions of the LPLC checklist that covers every section 5A requirement.
- Review all executed instruments before the file is closed.
The LPLC witnessing checklist
The LPLC's Witnessing an Enduring Power of Attorney checklist covers every mandatory requirement under sections 36 and 5A of the Act. Download it, attach it to your next file, and use it at every witnessing appointment.
