FAQ - Powers of AttorneyMore questions? The answers are here.
What are Powers of Attorney?
A Power of Attorney is a legal document that gives a person (the ‘attorney’), who is chosen by the ‘principal’, the legal authority to act for the principal and to make legally binding decisions on the principal’s behalf. There are two types of Powers of Attorney:
General Power of Attorney
A General Power of Attorney permits the attorney to make financial or legal decisions on the principal’s behalf for a limited time. This authority ends when specified in the document, when the principal revokes it, or if and when the principal loses the capacity to manage his or her own affairs.
Enduring Power of Attorney
An Enduring Power of Attorney (EPOA) may also be used to manage the assets and financial affairs of the principal but is often focused on personal care matters or health care matters.
An Enduring Power of Attorney continues to be valid even if the principal loses legal capacity due to disability or illness. This allows the attorney to commence or to continue to manage the principal’s affairs even though the principal is unable to give lawful instructions.
NOTE: Legislation concerning Enduring Powers of Attorney differs across Australia. A JP in the ACT may not be able to witness an Enduring Power of Attorney prepared under legislation of another state or territory.
I need to make an Enduring Power of Attorney. What will the JP do?
A Power of Attorney must be witnessed by two adult witnesses (independent of the document), one of who must be a person authorised to witness the signing of a statutory declaration. Both witnesses must be present when the person making the Power of Attorney (the principal) signs the document.
A witness to Power of Attorney has a statutory duty to certify that the principal appeared to understand the nature and effect of making an enduring power of attorney.
The JP will usually:
- scan the document to ensure it is in the proper form and that all required sections have been completed
- take reasonable steps to ensure the principal has a full understanding of the nature and effect of the Power of Attorney and is signing the document voluntarily. This may mean asking questions of the principal in private
- witness the principal sign the document and indicate his or her choices
- sign and date the document and complete the witness certificate.
It is helpful if the attorney/s are present because they need to sign their acceptance acknowledgements to complete the document.
You can help us to help you if you:
- ask your proposed attorney or attorneys to attend to sign their acceptance acknowledgements
- ask a second witness to attend
- bring photographic identification
- bring the completed, but unsigned, document(s)
- obtain a copy of The Power to Choose publication and refer to it when filling out the Power of Attorney document. The Power to Choose may be downloaded from the website of the ACT Public Trustee and Guardian.
Who needs to attend when the Power of Attorney is witnessed?
The person assigning the power (the principal) must attend and a second witness must also be present. It is helpful if the attorney/s are present because they need to sign their acceptance acknowledgements to complete the document, but this can be done at a later date if necessary.
Where do I get information about the various forms of Powers of Attorney?
You can get general information from the website of the ACT Public Trustee and Guardian. You can also download an Enduring Power of Attorney form and the publication The Power To Choose from the Public Trustee and Guardian’s website.
The ACT Justices of the Peace Association strongly recommends you obtain a copy of The Power to Choose before preparing your Enduring Power of Attorney. The Power to choose is an excellent publication that clearly explains the ‘whys’ and ‘wherefores’ of Enduring Powers of Attorney. It includes guidelines on how to complete the document and copies of the form.
You can also download blank Power of Attorney forms (Enduring and General Powers of Attorney) from the ACT Government Legislation Register.
I'm told I need two witnesses - will the Justice of the Peace provide the second witness?
No, the Justice of the Peace does not provide the second witness. The principal needs to bring an appropriate second witness when the power of attorney is to be witnessed by the JP. The second witness must be an adult and cannot be a proposed attorney or a person signing the enduring power of attorney for the principal.
Do I need to bring anything other than the Power(s) of Attorney?
Yes, you should bring photographic identification for the principal and the attorney/s.
What will happen when we come to see the Justice of the Peace?
The Justice of the Peace will need to be satisfied the principal has a clear understanding of the powers they are giving and the possible consequences of the actions they are taking, and is preparing the document voluntarily. Those present may be asked to leave the room while the Justice of the Peace speaks with the principal privately.
What happens if I sign the Power of Attorney before I meet with the Justice of the Peace?
A Justice of the Peace will ask you to sign the document again, in the presence of the JP and the second witness.
My parents want to make an Enduring Power of attorney but are not confident when reading or speaking English. What should they do?
The JP must be able to communicate sufficiently well to understand your parent’s intentions when preparing the Enduring Power of Attorney and to be satisfied they understand the nature and intent of the document.
You may use the services of an interpreter, but they must be qualified and registered with the National Accreditation Authority for Translators and Interpreters.
You cannot use a family member or friend to translate or interpret.