Wills and Enduring Powers of Attorney: A guide to electronic signing during COVID-19
With COVID-19 restrictions still in place governments are continuing to urge us to practise social distancing.
In view of this, the Victorian Government recently enacted the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations).
The Regulations allow Wills and Enduring Powers of Attorney (among other documents) to be signed and witnessed electronically, so that witnesses can continue to perform their duties without being physically present. Such duties include being satisfied about the 'identity of the signatory', and ensuring that he or she signs 'freely and voluntarily'.
The signing process
Wills and Enduring Powers of Attorney must be signed by the person making the document and two witnesses. To do this electronically, those involved must maintain an 'audio-visual link' throughout the process. Participants must be able to view the document being signed. This could be achieved by using a platform such as Skype or Zoom. As well as maintaining an audio-visual link, there are specific steps which must be followed to complete the signing process electronically.
1. The principal signs
Firstly, the person making the Enduring Power of Attorney, the principal, or the Will-maker must sign the document.
Under the Regulations, there are two ways to sign a Will or an Enduring Power of Attorney:
a) An electronic signature can be attached to a PDF version of the document using a computer or a smartphone. If using this method, the electronic signature must be followed by statement that:
This document was signed electronically in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020; or
b) The document can be signed in the usual way, by using a pen to sign a paper version of the document.
Then, according to the Regulations, the signed document must be transmitted to the first witness. If the document was signed electronically, it can be saved and forwarded via email. If a paper copy of the document was signed, it must be scanned and then forwarded.
2. The first witness signs
Next, the first witness must sign the document, either electronically or by printing the scanned copy and then using a pen to sign. Beneath his or her signature, the first witness must add the following statement:
This document was witnessed by audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
If using an electronic signature, the first witness must also include a statement noting this (see step one). The Will or Enduring Power of Attorney signed by the Will-maker/ principal and the first witness must then be transmitted to the second witness.
3. The second witness signs
The second witness must repeat the steps taken by the first witness. The signed Will or Enduring Power of Attorney must then be transmitted back to the Will-maker or principal.
4. The principal completes the Will/Enduring Power of Attorney
To complete the process, the principal or Will-maker must include the following statement on the Will or Enduring Power of Attorney:
This copy is a true copy of the [Will/Power of Attorney] signed by me in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
This statement must be signed and dated by the principal. This version of the document then becomes the Will or Enduring Power of Attorney. At this point, the process is complete and the audio-visual link can be switched off.
Statement of Acceptance – Enduring Power of Attorney
An attorney or alternate attorney appointed pursuant to an Enduring Power of Attorney must sign a Statement of Acceptance. The Regulations allow a Statement of Acceptance to be signed and witnessed via an audio visual link. Once a Statement of Acceptance has been witnessed, the attorney or alternate attorney must add to the document the following statement:
This copy is a true copy of the instrument containing the statement of acceptance signed by me in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.
This version of the document can then be attached to the original Enduring Power of Attorney.
We can help
If you would like more information about having a Will or an Enduring Power of Attorney prepared, please do not hesitate to contact our Wills and Estates team on 03 9550 4600.