COVID-19 Workarounds for Estate Planning

The COVID-19 pandemic has seen an increase in enquiries about how social distancing measures will affect the execution of important legal documents including Wills and Enduring Powers of Attorney.

Under the Wills Act 1997, a Will must be signed by or at the direction of the testator in the presence of two independent witnesses each of whom must sign and attest the Will in the presence of the testator.

Similarly, under the Powers of Attorney Act 2014 an Enduring Power of Attorney must be signed by the principal in the presence of two independent adult witnesses one of whom must be a medical practitioner or a person authorised to take affidavits. The attorney or attorneys appointed under the instrument must accept their appointment by signing a statement of acceptance in the presence of an independent adult witness.

Whilst practitioners providing estate planning services can continue to witness the signing of Wills and Powers of Attorney at their office or at their clients’ homes, provided safe distancing measures are in place, understandably, some people may prefer or have legitimate reasons to avoid any form of physical contact if possible.

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2000

The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2000 (‘Regulations’) which came into force on 12 May 2020 modify the Wills Act 1997 and the Powers of Attorney Act 2014 so that Wills and Powers of Attorney can be signed electronically and witnessed by audio-visual link.
Amongst other things:

  • Part 4 of the Regulations sets out the circumstances in which Enduring Powers of Attorney can be created or revoked remotely by audio-visual link; and
  • Part 5 of the Regulations sets out the circumstances in which Wills can be created or amended remotely by audio-visual link.

The Regulations are very specific and detailed. They impose a number of additional steps which rely on the use of audio-visual links, including Skype and Zoom, and they require the documents to be endorsed with additional signatures and statements certifying the manner of execution.

They have been designed to ensure a balance is struck between the current need to relax the formal requirements for valid execution of Wills and Powers of Attorney and the imperative of ensuring the integrity of the process is maintained so as to protect testators and principals conferring vast powers of appointment over their financial, legal and personal affairs from undue influence and abuse.

Appointments of Medical Treatment Decision Maker and Advance Care Directives

The Regulations do not apply to Medical Powers of Attorney (formally known as Appointments of Medical Treatment Decision Maker) and Advance Care Directives.

These documents must still be executed in accordance with the requirements under the Medical Treatment Planning and Decisions Act 2016. Namely;

  1. Medical Powers of Attorney must be signed by the principal in the presence of two independent adult witnesses, one of whom must be a medical practitioner or a person authorised to take affidavits.
  2. Instructional Advance Care Directives (binding) must be signed by the principal in the presence of two independent adult witnesses, one of whom must be a medical practitioner.

The Governor in Council has the power to modify these requirements in response to the COVID-19 pandemic but is yet to do so.

The importance of seeking advice before purporting to execute a Will or Enduring Power of Attorney

The COVID-19 pandemic has no doubt created a number of challenges and interruptions in the delivery of important legal and financial services. One would hope that in years to come courts will apply a degree of discretion when reviewing legal documents which were executed improperly, albeit inadvertently, during the COVID-19 crisis. Nevertheless, Parliament has responded by introducing a suite of legislative provisions specifically designed to ensure Wills, Enduring Powers and other important legal documents can continue to be validly executed during this period of self-isolation.

If you wish to create or update your Will and/or Enduring Powers of Attorney and would like to know how this can be achieved remotely, please feel free to contact one of our accredited Wills and Estates team on (03) 85400 200.