NEW EMERGENCY REGULATIONS
THE COVID-19 OMNIBUS (EMERGENCY MEASURES)
(ELECTRONIC SIGNING AND WITNESSING) REGULATIONS 2020
Statutory Rule No 34 of 2020 came into force on the 12 May, 2020 and is a vivid example of the seriousness the Victorian State Government is placing on the importance of maintaining isolation and/or social distancing in combating COVID-19.
These new regulations have been implemented for the next six months only, to enable Wills, Powers of Attorney, Statutory Declarations and other important legal documents to be signed electronically and witnessed by audio-visual means. This ensures that in this crisis we Lawyers can protect our clients by completing such documents when illness, distance and/or the fear of illness would otherwise have prevented execution due to the requirements of the:
• Wills Act 1997;
• Powers of Attorney Act 2014; and
• Oaths and Affirmations Act 2018
for the physical presence of the witnesses with the person signing.
Whilst in many cases it can be business as usual, with the owner of the document and witnesses assembling in a conference room to sign, with new technology there is NOW the ability to finalize these important documents remotely.
This however does require the client, witnesses and their Lawyer all to have the knowledge, ability and equipment to set themselves up to see and hear all other parties whilst the signing function is performed, and as part of the process to convey the signed document to all others for them to sign, all “on the same day”. Many offices, let alone their clients, particularly the elderly, will not have this capacity.
That a Testator can now sign before “2 persons appearing before each other by audio link” is one thing, however all other obligations on Lawyers for the making of a valid legal document have not changed and you are reminded of the increased possibility of elder abuse or that the signing is not voluntary – much easier to hide if there is no physical presence.
Whilst these documents deal with property, both before and after death, it is an interesting and potentially controversial omission from the regulations which do not apply to the Appointment of a Medical Decision Treatment Maker or for the making of an Advance Care Directive. The strict legal signing requirements are retained for these “life and death” focused documents.
The recommendation is, Lawyers should only use remote document signing, witnessing and Verification of Identity as a step of last resort. We should be extremely careful when using technology with which we are not familiar and have a dry run before doing so with clients.
Finally, file notes are more important than ever as it is more difficult in a video setting to assess client capacity and intention and lack of duress and undue influence.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.