Appendix 2: Witnessing Requirements—jurisdictions where enduring powers of attorney and enduring guardianship (or equivalent) are separate

Jurisdiction

Signatory

Enduring Power of Attorney

Enduring Guardianship (or equivalent)

NSW

Principal

One witness being either a registrar of the Local Court, a barrister or solicitor, a conveyancer, certain employees of the NSW Trustee and Guardian or a trustee company, or certain foreign qualified lawyers.[1] The witness must certify that the person explained the effect of the instrument to the principal before it was signed and that the principal appeared to understand the effect of the power granted.[2]

One or more eligible witnesses being either a registrar of the Local Court, a legal practitioner, certain employees of the NSW Trustee and Guardian or Service NSW, or certain foreign qualified lawyers.[3] Witness(es) must certify that the signing was voluntary and that the person signing appeared to understand the effect of the instrument.[4]

 

Attorney/Guardian

No witness required.

Same requirements as for the principal.

SA

Principal

One or more witnesses, one of whom must be qualified to sign affidavits[5] (being either a JP, certain police officers, certain judicial officers, certain court registrars and deputy registrars, and legal practitioners).

 

One suitable witness. A suitable witness is broadly defined.[6] Witness must certify that: they explained to the person giving the advance care directive the legal effects of giving an advance care directive of the kind proposed; and in their opinion the person giving the advance care directive appeared to understand the information and explanation given by the witnesses; and did not appear to be acting under any form of duress or coercion.

Attorney/ Substitute decision maker

No witness required.[7]

No witness required.

WA

Principal

Two witnesses with at least one eligible to take declarations.[8]

Two witnesses and at least one must be eligible to take declarations.[9]

Attorney/ Guardian

No witness required.

Two witnesses and at least one must be eligible to take declarations.[10]

Tas

Principal

Two witnesses neither of whom is a party to the document or a close relative of a party.[11]

Two witnesses neither of whom is a party to the document or a close relative of a party.[12] Witnesses must certify that the principal signed freely and voluntarily and that the principal appeared to understand the effect of the instrument.

Attorney/ Guardian

No witness required.[13]

No witness required.[14]

 

[1]           Powers of Attorney Act 2003 (NSW) s 19(2).

[2]           Ibid, s 19(1)(c).         

[3]           Guardianship Regulations 2016 (NSW) reg 4.

[4]           Guardianship Act 1987 (NSW) s 6C.

[5]           Powers of Attorney and Agency Act 1984 s 6(2)(a).

[6]           For example, it includes: certain agents and employees of Australia Post; certain bank, building society and credit union employees; clerks of courts; members of Engineers Australia; members of the accounting professions; MPs; certain public servants; lawyers; police officers; teachers and vets. A person cannot be a suitable witness if: they are appointed under the advance care directive as a substitute decision-maker; they have a direct or indirect interest in the estate of the person; they are a health practitioner responsible for the health care of the person; or they occupy a position of authority in certain facilities at which the person resides.

[7]           See, eg, Oaths, Affidavits and Statutory Declarations Act 2005 (WA) sch 2.

[8]           Guardianship and Administration Act 1990 (WA) ss 104(2), 110E(1)(c). Who may witness declarations is set out in the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). This is a broad list of professionals similar to, but broader than, the list in South Australia.

[9]           Guardianship and Administration Act 1990 (WA).

[10]         Guardianship and Administration Act 1990 (WA).

[11]         Powers of Attorney Act 2000 (Tas) s 9(1).

[12]         Guardianship and Administration Act 1995 (Tas) s 32(2).

[13]         Powers of Attorney Act 2000 (Tas) s 30(c).

[14]         Guardianship and Administration Act 1995 (Tas) s 32.