Queensland Law Society

Are there any guidelines for witnessing an enduring power of attorney (EPA)?

Yes. The Office of the Public Guardian in Queensland has issued Guidelines for Witnessing Enduring Documents (this supersedes the 2005 "Capacity guidelines for witnesses of Enduring Powers of Attorney").

The guidelines are useful in suggesting how to conduct interviews with the client donor to assess their mental capacity to execute an EPA. The guidelines include examples of the questions to ask, the signs to look for that might suggest incapacity (and therefore the need for a medical assessment) and the important issue of note-taking.

Failure to follow these guidelines may have disciplinary consequences. For example, in Legal Services Commissioner v Ford [2008] LPT 12 not following the guidelines was one element in a finding of unsatisfactory professional conduct. A summary of this case appeared in Proctor November 2008 p.10. In that case, the reference to the QLS's capacity guidelines is in fact a reference to the Public Guardian guidelines on the QLS website (see above).

There have been further similar disciplinary cases since the Ford case – see Legal Services Commission v de Brenni [2011] QCAT 340 and Legal Services Commission v Comino [2011] QCAT 387.

The differing capacity tests for EPAs and wills, and a solicitor’s role and duties in assessment of capacity, are discussed in an article by Barbara Hamilton and Tina Cockburn Capacity to make a Will and Enduring Power of Attorney: Issues new and old (QLS Journal December 2008 pp.14-18). This article also analyses the Ford decision. A condensed version of this article entitled Assessment of capacity: Disciplinary issues and potential liability appeared in Proctor March 2009 at pp.15-17.

Lindy Willmott and Ben White co-wrote an article 'Solicitors and enduring documents: Current practice and best practice' (2008)16 JLM 466 and examined solicitors’ practice in relation to enduring documents (EPAs and Advance Health Directives) and a number of relevant tribunal and court decisions where enduring documents have been set aside for lack of capacity. This article is available to QLS members from the Supreme Court Library.

Another useful resource is Lexon Insurance’s Wills and EPA Procedure Pack. To access this resource, go to the Lexon Insurance website and login using your QLS member login details. Go to the main navigation heading Managing your Risk and the select Wills and EPA Risk Procedure Pack from under the Succession heading.

Of equal relevance to solicitors is the June 2009 bulletin issued by the Queensland Department of Justice and Attorney-General to JPs and Commissioners for Declarations Witnessing Enduring Powers of Attorney and Advance Health Directive documents as a result of concerns that these documents were frequently being improperly witnessed.