Enduring Power of Attorney in Victoria: Witnesses, Duties and Interstate Recognition

A Victorian enduring power of attorney needs two witnesses under section 33(1)(b) of the Powers of Attorney Act 2014 (Vic), and one of them must specifically be a person authorised to witness affidavits, such as a lawyer or Justice of the Peace, or a medical practitioner, under section 35(1)(b).

This page covers the Victorian enduring power of attorney: execution, forms, attorney duties, revocation and interstate recognition. For what an enduring power of attorney is and how the states compare, see the national overview of enduring power of attorney in Australia. Medical treatment decisions are made under a separate instrument, the medical treatment decision maker appointment, under the Medical Treatment Planning and Decisions Act 2016 (Vic); see enduring guardianship and health decisions in Australia for the general personal-decisions picture across states.

The instrument and what it covers

Victoria's Enduring Power of Attorney, made under the Powers of Attorney Act 2014 (Vic), can combine financial matters and personal matters, such as where the principal lives and day-to-day care, in one document. Medical treatment decisions are excluded and are instead handled through a separate Advance Care Directive or a medical treatment decision maker appointment.

Execution and witnessing

Two witnesses are required, under section 33(1)(b). Both must be present at the same time, watch the principal sign the document, and then sign and date it themselves in the principal's presence and in each other's presence, and certify the signing in writing under section 36.

Section 35(1)(b) adds a requirement beyond "any two adults": at least one of the two witnesses must be a person authorised to witness affidavits (a category that includes lawyers and Justices of the Peace) or a medical practitioner. General eligibility under section 35(2) excludes anyone under 18, the person who signed at the principal's direction, an attorney under the instrument, a relative of the principal or of an attorney, and a care worker or accommodation provider for the principal. An attorney's employee is not excluded for that reason alone, provided they are acting in the ordinary course of their employment.

Section 34 separately allows another person to sign on the principal's behalf, at the principal's direction, provided that person is 18 or older and is not a witness or an attorney under the document.

A 2021 amendment to the Act (inserted by Act No. 11/2021) added a remote-witnessing procedure using audio-visual links and electronic signatures as a recognised alternative to signing in person.

Attorney duties, conflicts and gifts

Section 66 requires an attorney to keep accurate records of every financial dealing and every material personal-matter decision made under the power. Section 67 limits gifts of the principal's property: a financial attorney may only make a gift if it is reasonable given the principal's overall circumstances, particularly their financial position, and the gift is either to a relative or close friend for a seasonal occasion or special event, such as a birth or marriage, or is a type of donation the principal made, or would likely have made, before losing capacity.

Revocation

Section 54 automatically revokes an enduring power of attorney as it applies to a particular attorney if that attorney later becomes an insolvent under administration, becomes a paid care worker, health provider or accommodation provider for the principal, or, for a financial attorney, is convicted of a dishonesty offence; a trustee company's appointment ends on the company's winding-up or deregistration.

No provision in the Act was found revoking or narrowing an enduring power of attorney on the principal's own marriage or divorce, which is a real contrast with Queensland's divorce provision and the Australian Capital Territory's marriage and divorce provisions. This is based on a search of the Act text rather than a full section-by-section read, and should be treated as a documented gap rather than a settled conclusion pending further confirmation, for example from the Office of the Public Advocate.

Instruments made in other states

Section 138 gives automatic effect in Victoria to an enduring power of attorney validly made under the law of another Australian state or territory, treating it as a Victorian enduring power of attorney to the extent its powers could have been validly given under Victorian law. No separate application to a court or tribunal is needed, and it applies whether the interstate document predates or postdates the Victorian Act, and covers any instrument functioning as an enduring power of attorney even if not called that.

Registration

No provision requiring general registration of an enduring power of attorney for it to be valid was found in the Act. Land dealings in Victoria go through the state's ordinary land titles process; whether a particular transaction needs the document lodged is a question for that process rather than a separate power-of-attorney register.

Disputes

The Victorian Civil and Administrative Tribunal (VCAT) decides issues about enduring powers of attorney, including suspending, cancelling or varying an appointment, deciding whether an appointment is valid, resolving disputes between attorneys, and ordering compensation where an attorney does not comply with the Powers of Attorney Act 2014. For making a new appointment, VCAT directs enquiries to the Office of the Public Advocate.

Official forms

Enduring power of attorney forms are available from the Office of the Public Advocate and the Department of Justice and Community Safety, including fillable PDF versions, and are free to download. For the probate process that follows a death in Victoria, see applying for probate in Victoria.