Who can witness an Enduring Power of Attorney in NSW?

We often get asked whether a lawyer needs to be involved in putting in place an Enduring Power of Attorney.  The answer to this question is a simple no, you do not need to involve a lawyer – you are quite at liberty to put an Enduring Power of Attorney in place on your own.  There are some very useful resources on the web to assist you.

However, in order to be a valid Enduring Power of Attorney in NSW your signing of the document must be witnessed by a ‘prescribed person’, and that person must attest to a number of important things, including that they:

  • Explained the effect of the document to you before you sign it; and
  • Believe you understand the effect of the document.

Obviously their ability to do this without being involved in the preparation of the document may be limited.

So who is a prescribed person for this purpose?  Section 19(2) of the Powers of Attorney Act 2003 (NSW) defines a ‘prescribed person’ as:

  • A barrister or solicitor of any State or Territory of the Commonwealth;
  • A legal practitioner duly qualified in a country other than Australia;
  • A licensed conveyancer under the Conveyancers Licensing Act 2003 (NSW);
  • A registrar of the Local Court;
  • An employee of the NSW Trustee & Guardian or a trustee company registered under the Trustee Companies Act 1964 who has completed a course of study approved for this purpose; or
  • Any other person prescribed by regulation for the purposes of Section 19(2).

At the time of writing this article no other class of persons has been prescribed by regulation for the purposes of Section 19(2).

Sometimes people get confused by the Powers of Attorney Regulation 2016 (NSW) which defines the classes of persons who can endorse a copy of a Power of Attorney under Section 44(1)(a)(ii) of the Powers of Attorney Act 2003 (NSW).  This regulation provides a much broader list of people for this purpose, but this list does not apply for the purpose of witnessing the Enduring Power of Attorney itself under Section 19(2).

If you would like to put in place a valid Enduring Power of Attorney, or if you have any doubts as to the validity of your existing Enduring Power of Attorney, please call us on 1300 654 590.

Want to know more?

Click here to find out more about how we can help you with your Estate Planning needs.

Our Great Lawyer Guarantee

We want to be part of your team over the long term. We'll achieve this by sticking closely to the following principles:

  • We'll listen carefully to understand what you want to achieve. Then we'll thoroughly explain our advice and step you through the documents. You can be sure you'll know the full consequences.
  • Our lawyers work as a team, so someone will always be available to answer your questions, or point you in the right direction. You will also benefit from a range of perspectives and experience.
  • One of our key goals is to pass on as much knowledge as we can, so you can make your own informed decisions. We want to make you truly independent.
  • We only do what we're good at. You can be confident that we know what we're doing and won't pass on the cost of our learning.
  • For advice and documents, we provide a fixed or capped quote so you don’t take price risk. If you're in a dispute, we'll map out the process and costs so you know what to expect.
  • We're not in this game for our egos. We're in it for a front row seat to witness your success.

We measure our success on how efficiently we have facilitated your objectives, enhanced your relationships, and reduced the level of stress for all involved.

If we sound like people you can work with, call us now on 1300 654 590 and speak directly with a great lawyer.

Call 1300 654 590 and speak with a lawyer today

You'll be put straight through to a great lawyer who will guide you to the right solution.

Estate planning for sole directors of private companies

Estate planning for sole directors of private companies

If you are the sole shareholder and director of a private company, have you thought about what will happen to your business if you lose capacity or die? Failure to plan for this eventuality can affect the financial viability of your assets and leave your family vulnerable – so it is something you need to turn your mind to. Fortunately, there are several solutions that are easy to implement and lots of advice about these issues is available.

read more