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Law Institute of Victoria welcomes emergency regulation changes to witnessing legal documents during COVID-19

Law Institute of Victoria welcomes emergency regulation changes to witnessing legal documents during COVID-19

By LIV Media


New government emergency regulations will overcome many of the problems in signing legal documents, according to the Law Institute of Victoria.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been welcomed by the LIV.

The Emergency Regulations allow many important legal documents such as wills and powers of attorney to be signed electronically and witnessed by audio-visual means. 

“That means witnesses to the signing of a will or power of attorney don’t have to be in the physical presence of the person signing – they can witness by video conference.

“They also allow a person to sign remotely using an electronic signature” LIV President Sam Pandya said.

Mr Pandya said it was critical that lawyers fulfilled their ethical duties to ensure the will signing was voluntary and did not lead to an increase in opportunities for elder abuse.

“Wills and powers of attorney are very important documents that allow other people to deal with property both before and after our death. 

“We always have to be on the lookout for those who take advantage of others – particularly where this involves elder financial abuse”.

“With remote signing and witnessing, the witness may have no idea who’s behind the camera or in the next room. It’s also more difficult to assess the decision-making capacity of the person signing and whether they are signing freely and voluntarily, which are mandatory legal requirements for anyone witnessing a power of attorney,”. Mr Pandya said.

Although social distancing requirements have been eased, these regulations still provide options for electronic witnessing of some legal documents over the next six months.

In response to the Emergency Regulations, 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 elder abuse.

The LIV notes that the COVID-19 Omnibus (Emergency Measures) Act 2020 does not apply to the appointment of a medical treatment decision-maker or the making of an advance care directive. There is no relaxation of the strict legal signing requirements for these documents.

The LIV supports similar changes to the Act for these important documents.

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