Enduring Power of Attorney in the Australian Capital Territory: Witnesses and Registration

An Australian Capital Territory enduring power of attorney, made under the Powers of Attorney Act 2006, needs two witnesses under section 19(2)(a) and can cover property, personal care and health care matters all in one instrument.

This page covers ACT state machinery: execution, forms, registration, the attorney's duties and gift limits, revocation, and how the ACT treats an interstate power of attorney. For what an enduring power of attorney is and how the states compare, see the national overview of enduring power of attorney in Australia.

The instrument and what it covers

The ACT calls the document an Enduring Power of Attorney, made under the Powers of Attorney Act 2006. The Act defines property matters (section 10), personal care matters (section 11) and health care matters (section 12) within the same statute, so a single ACT enduring power of attorney can validly cover any combination of financial, personal care and health care decisions. This is more unified than jurisdictions such as New South Wales or Western Australia, which split financial authority and personal or health decisions into two separate documents; see the national overview for how the states compare.

Execution: two witnesses, one with a specific qualification

Section 19(2)(a) requires the instrument to be signed and dated by two adult witnesses in the presence of the principal and of each other, and section 19(2)(b) requires a certificate from each witness under section 22.

Section 21 limits who those witnesses can be. Only one of the two witnesses may be a relative of the principal or of an attorney named in the document; the other may not be. For an enduring power of attorney specifically, at least one of the two witnesses must be a person authorised to witness the signing of a statutory declaration, a narrower requirement than applies to an ordinary general power of attorney. This page has not confirmed the Act's full list of disqualified witness categories beyond the relative and statutory-declaration-witness rules above; check the current Act before relying on a witness's eligibility in a borderline case.

Registration

Section 29 treats a power of attorney that complies with the Act as a deed for all purposes, even if it is not expressed to be one or sealed. The note to section 29 states that a deed may be registered under the Registration of Deeds Act 1957, and must be registered for a dealing with land by the attorney to be registered, under the Land Titles Act 1925, section 130. As in most other jurisdictions, general registration is not required for the enduring power of attorney's own validity, only for a land dealing carried out under it. This page has not independently confirmed the current Access Canberra Land Titles Office registration fee.

Attorney duties, conflicts and gifts

An enduring power of attorney does not by default authorise the attorney to make any gift of the principal's property to anyone. Section 39 lets the principal expressly include a general authority to make gifts; if included, it authorises only a gift to a relative or close friend for a special event or occasion, such as a birth or a marriage, or a donation of a kind the principal made when they had capacity or might reasonably be expected to make. Either kind of gift is capped at what is reasonable in the circumstances. The attorney, or a charity connected to them, is not barred from receiving a gift made under this general authorisation.

Revocation

Section 54 confirms a power of attorney can always be revoked under the Act, regardless of any contrary wording in the document. On revocation, section 55 requires the principal to take reasonable steps to tell every affected attorney. Section 56 revokes a power of attorney when it ceases to have effect according to its own terms, such as an expressed end date.

The ACT legislates more life-event triggers than most other jurisdictions. Under section 58, if the principal marries or enters a civil union or civil partnership with someone other than the appointed attorney after the appointment, the enduring power of attorney is revoked as to that attorney, unless the instrument expressly says it is not. Under section 59, if the attorney is the principal's spouse or civil partner and that relationship ends, the power is revoked as to that attorney. Section 60 revokes the power entirely on the principal's death. Section 61 revokes the power as to an individual attorney on that attorney's death, without necessarily ending the whole instrument if there are co-attorneys. Section 62 also gives an attorney's bankruptcy an effect on their appointment; this page has not confirmed the exact wording of that section and does not state its precise mechanics here.

Instruments made in other states

Recognition of an interstate power of attorney is automatic in the ACT and covers general and enduring powers separately. Under section 88, an interstate general power of attorney is automatically treated as an ACT general power of attorney, to the extent its powers could validly have been given under the ACT Act. Under section 89, an interstate enduring power of attorney, meaning one that is not revoked by the principal's loss of capacity and not expressed to be irrevocable, is automatically treated as an ACT enduring power of attorney on the same basis. Neither provision requires an application or a tribunal step.

Official forms and fees

The approved form is AF2017-45 under section 96 of the Act, effective 8 March 2017, available in PDF and Word from the ACT legislation register. Guidance on completing it is directed to the Public Trustee and Guardian ACT; this page has not independently fetched that guidance or a current registration fee, so confirm both directly before relying on them.

For the probate process that follows a death in the Australian Capital Territory, see applying for probate in the Australian Capital Territory.