Update on Signing & Witnessing Legal Documents During COVID-19

In light of the practical difficulties that have arisen from the COVID-19 crisis, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been introduced.

The regulations have modified the signing and witnessing procedures of legal documents over the next six months to combat these difficulties.

Previously, witnesses had to be in the physical presence of the person signing the document – they can now witness signatures via video conference. The person signing the document is also capable of signing the document remotely using an electronic signature.

In light of the practical difficulties that have arisen from the COVID-19 crisis, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been introduced.

The regulations have modified the signing and witnessing procedures of legal documents over the next six months to combat these difficulties.

Previously, witnesses had to be in the physical presence of the person signing the document – they can now witness signatures via video conference. The person signing the document is also capable of signing the document remotely using an electronic signature.

The following documents can be signed electronically and witnessed by audio visual means:

  • Wills;
  • Powers of Attorney;
  • Deeds;
  • Mortgages; and
  • Statutory Declarations.

For the execution of these documents to be effective, signatures of the person executing the document and the person witnessing the signature will need to be accompanied by a statement indicating that they have signed or witnessed the signing using an audio-visual link in accordance with the regulations.

Mandatory requirements of witnessing still apply, with witnesses still required to assess the decision-making capacity of the person signing the document, something which may be more difficult when remotely witnessing a signature. This is particularly important when witnessing Wills and Powers of Attorneys, due to the capacity issues that can arise.

The Law Institute of Victoria (LIV) has emphasised the need for pragmatism to ensure capacity issues do not arise from the new procedures. The LIV recommends that at least one of the witnesses to the remote signing of a Will or Power of Attorney be a lawyer, Justice of the Peace or a public notary to significantly reduce the risk of capacity issues.

The regulations do not currently apply to appointment of medical treatment decision-makers or the making of an advanced care directive.

If you would like to discuss your options regarding these changes, please do not hesitate to contact our office.

The information contained herein is of a general nature only and is not intended to be relied upon nor is it a substitute for appropriate professional advice. Whilst all care has been taken in the preparation of the material, it is not guaranteed to be accurate.Individual circumstances are different and as such, require specific examination. Asparq cannot accept liability for any loss or damage of any kind arising out of the use of or reliance upon all or any part of this material. Additional information may be made available upon request.

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