Powers of attorney documents – online witnessing

Changes to the Powers of Attorney Act 2014 enable powers of attorney documents to be witnessed online via audio visual link.

What is a power of attorney?

A power of attorney is a legal document under which a person (referred to as the ‘principal’) who has decision-making capacity may appoint another person (referred to as an ‘attorney’) to make decisions on their behalf.

The remote witnessing procedure for powers of attorney documents

The requirements of online witnessing are outlined in the Powers of Attorney Act 2014 as the 'remote witnessing procedure'.

When using the remote witnessing procedure:

• One or more people participating can be present via audio visual link, provided they are physically situated in Victoria.
• Each witness is still required to fulfil all existing obligations under the Act. Remote witnesses have additional certification requirements.
• A special witness is required for online witnessing of some Power of Attorney documents.
• The remote witnessing procedure must be completed within the one day.

Note: some powers of attorney documents may have more than one section that requires witnessing. These can be done on separate days, provided the remote witnessing procedure for each section is completed within one day.

Making arrangements for online witnessing

When organising to have a document witnessed via an audio visual link, you should consider the following:

• How will you meet online? For example, through Zoom or Skype.
• How will you send documents to one another?  This could be through fax, email or some other way of electronically sending documents.
• Do you want to use a scanned copy or an electronic copy of the powers of attorney document? Do you have access to a scanner and printer?
• Is a ‘special witness’ required?

Special witnesses

One witness must be a ‘special witness’ when the remote witnessing procedure is used for the following documents:

• Enduring power of attorney (execution or revocation)
• Supportive attorney appointment (execution or revocation)

Other types of powers of attorney documents can be witnessed online without a special witness:

• Non-enduring power of attorney if the principal is directing another person to sign on their behalf
• Statement of acceptance of appointment by attorney
• Statement of acceptance of appointment by alternative attorney
• Statement of acceptance of appointment by supportive attorney
• Statement of acceptance of appointment by alternative supportive attorney

A special witness must be:

• an Australian legal practitioner, or
• a justice of the peace.

The role of the special witness is to oversee the use of the remote witnessing procedure. You can learn more about the responsibilities of the special witness below.

How to execute a power of attorney using the remote procedure for witnessing

The remote witnessing procedure requires that the following steps occur within Victoria:

(These steps can be recorded where all parties consent to a recording being made.)

Step 1

The witnesses see the principal (or other signatory or substitute signatory) sign the document (by audio visual link or in person).

• If there is a substitute signatory, the witnesses must also see and hear the direction of the principal to the substitute signatory.

Step 2

Any witness physically present with the principal, (so long as they are not the special witness, if a special witness is required) signs the document.

Step 3

A copy of the document is then sent by electronic communication to any witnesses who are attending online. The remote witness/es must:

• be reasonably satisfied that the document is the same document that the principal (or the substitute signatory) signed
• complete certifications required of all witnesses as to decision-making capacity and free and voluntary signing
• certify that they witnessed the document by audio visual link in accordance with the remote witnessing procedure, and
• sign and date the document in the presence by audio visual link of the principal and other witnesses. They can use an electronic signature or a handwritten signature on a printed copy of the document.

Step 4

The special witness (if required) must fulfil the requirements of an ordinary witness (above). The special witness must be the final signatory, and only sign the document after:

• checking the power of attorney or other document for compliance with the remote witnessing procedure, and
• certifying the following:
  • that the document was signed and witnessed in accordance with the remote witnessing procedure
  • that they are a special witness and include their qualification as a special witness, and
  • whether, to their knowledge, an audio-visual recording was made of the remote witnessing procedure.

Which document is the completed power of attorney (or other instrument)?

During a remote witnessing procedure, multiple versions of a document may be sent from one participant to another.

The final, completed power of attorney (or other instrument) will be as follows:

If the document required a special witness:

• the document containing the certification of the special witness (who must be the last witness) is the instrument.

If the document did not require a special witness:

• the document containing the signatures of the principal and/or the attorney and all witnesses is the instrument.