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Can a justice of the peace sign a power of attorney?

A question that we get asked time and time again is “can a justice of the peace sign a power of attorney?” or “can I sign my power of attorney in front of a justice of the peace?”

The simple answer is “yes, a justice of the peace can witness you sign the general power of attorney but they cannot witness you sign an enduring power of attorney”.

The general power of attorney does not need to be signed in front of a ‘qualified witness’ (ie, lawyer) which means it can be signed in front of anyone over the age of 18 years old. The general power of attorney allows you to authorise someone (ie, your attorney) to act on your behalf in relation to your legal and financial matters. However, if you lose your mental capacity, your general power of attorney will no longer be valid.

If you want a power of attorney that will still be valid even if you lose your mental capacity, then you need an enduring power of attorney instead of a general power of attorney. To be a legally valid enduring power of attorney, you must sign it in front of a qualified witness such as a lawyer.

Your qualified witness must provide you with legal advice about the enduring power of attorney before you sign the enduring power of attorney, they must witness you sign the enduring power of attorney and they must provide you with a certificate confirming that they provided you with legal advice before you signed the enduring power of attorney (in accordance with the Powers of Attorney Act).

A justice of the peace is not a qualified witness to sign the enduring power of attorney. They are not qualified to provide you with legal advice, they cannot provide you with a certificate confirming they have provided you with legal advice, and they cannot witness you sign the enduring power of attorney so that it is legally valid as an enduring power of attorney instead of a general power of attorney.

This means, if you are signing a general power of attorney, then you can sign it in front of a justice of the peace if you wish (or any other adult person), but if you are signing an enduring power of attorney then you cannot sign it in front of a justice of the peace (and you should really be seeking assistance from a lawyer).

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