COVID-19 New Document Witnessing Regulations

WITNESSING DOCUMENTS DURING THE COVID-19 EMERGENCY

For people who are unable to meet in person with a witness, new regulations allow for witnessing by audio visual link during the Covid-19 emergency.

Usually a person signing a document and the witness to the document must be physically in the presence of each other for a document to be witnessed legally. Queensland, New South Wales and Victoria have introduced temporary changes to this requirement allowing witnessing by audio visual link, like a Zoom or Skype meeting. The witness must be able to see and hear the person signing in real time.

Currently in Queensland, New South Wales and Victoria witnessing by audio visual link is possible for wills, enduring powers of attorney, statutory declarations, affidavits and deeds. Regulations in this area are changing almost weekly, so other states may follow.

These regulations are temporary for the Covid-19 emergency and can be repealed at any time.

Our recommendation is to take all steps possible to have documents witnessed in the usual way with the signatory and the witnesses in the physical presence of each other.

Problems may arise from signing using the Covid-19 regulations, including:

1. The requirements of the regulations are complicated. You will need a solicitor involved in the process. This will add to the expense of signing the documents. There is also the possibility that the documents are not signed correctly and are invalid.

2. In the future when the documents need to be used, the organisation examining the documents is unlikely to be familiar with the Covid-19 regulations and extra documents and explanations may be needed to prove the validity of the document. For example, if a person loses capacity in 20 years’ time and their attorney has given to the bank a copy of an enduring power of attorney signed in 2020 under Covid-19 regulations, the bank will most likely want solicitor’s advice on whether the enduring power of attorney was signed and witnessed legally. This will cause delays and expense.

For these reasons, we recommend documents witnessed by audio visual link pursuant to the Covid-19 regulations be re-signed once the signatory can meet in person with the witness.

HOW CAN MCINNES WILSON LAWYERS HELP?

If you or your clients are unable to meet in person with witnesses due to a government-required or recommended self-isolation or quarantine, then please contact us for assistance with witnessing by audio visual link.