How to Sign Wills, Powers of Attorney and Other Documents During COVID-19

In the legal profession, there are a wide range of documents that all need to be witnessed in the presence of at least one other person. It is a well-settled legal requirement that where a person must be "in the presence of" someone else, this requires physical proximity.

On 15 May 2020, regulations came into effect allowing for the execution of Wills and Enduring Powers of Attorney by audio-visual link. These regulations were subsequently amended on 22 May to authorise affidavits, statutory declarations, oaths and affirmations, deeds, General Powers of Attorney and some mortgages to be executed by audio-visual link. The regulations are now called the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020.

The regulations are complex and are significantly restrictive in how documents may be executed by audio-visual link. For example, the regulations, in all cases, require the involvement of a "special witness", which is defined as a person who is one of the following people:

  • An Australian legal practitioner;

  • A Justice of the Peace or Commissioner for Declarations who has applied for and received approval to witness documents by audio-visual link;

  • A Justice of the Peace or Commissioner for Declarations who is employed by the law firm that prepared the document, and who is witnessing the document in the course of their employment;

  • A Notary Public; or

  • An employee of the Public Trustee of Queensland where the Public Trustee of Queensland has prepared the document.

The regulations set out a detailed procedure that needs to be followed for a document to be considered valid when signed by audio-visual link.

Because of the procedural requirements, and the limitation on who can witness documents by audio-visual link, if you are in isolation (whether mandated or self-imposed) you should seek legal advice.

Please contact a member of our team if you would like to discuss this issue further.

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