Like most other states and territories across Australia, Queensland introduced a temporary regulation, namely the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 in early May 2020. Later that month, the Queensland government introduced the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths Regulation 2020 (Qld)) (the Regulation), which was an updated version of the original Regulation.
The Regulation commenced on 22 May 2020 and, at this stage, is set to expire on 31 December 2020. Importantly, it allows for varying documents to be made and executed electronically as well as witnessed via video link. The documents that are dealt with under the temporary Regulation are affidavits, affirmations, declarations, deeds, end of life documents (wills, enduring powers of attorney (EPOAs) and advanced health directives (AHDs)), general powers of attorney, mortgages and oaths.
So, what generally does the new Regulation allow?
Creating and executing documents:
The Regulation provides that affidavits, declarations, deeds, and general powers of attorney may be made and signed electronically if they are done in accordance with the Regulation. The creation and execution of documents may be done electronically without the consent of any signatory, witness or any other relevant person.
Affidavits and declarations
End of Life Documents
Wills, enduring powers of attorney (EPOA) and Advanced Health Directives may be witnessed over video. Importantly, however, the obligations under sections 44 and 49 of the Power of Attorney Act 1998 must still be followed. This includes the responsibility of the witness for EPOAs and AHDs to confirm the capacity of the signatory. It also extends to the additional certification by a doctor (or nurse under the Regulation) that is required to confirm the capacity of signatories when making an AHD.
General powers of attorney
The only people authorised to witness documents (excluding declarations) via video are special witnesses. Special witnesses are:
- Australian legal practitioners;
- Notaries public;
- Justices of the peace or commissioners for declaration (if approved by the chief executive);
- Justices or commissioners employed by a law practice that prepared the document; or
- Justices or commissioners employed by the Public Trustee if the Public Trustee prepared the document.
When witnessing a document, the special witness must be sure that:
- They can observe the signature of the person signing the document;
- The audio and video are clear enough to see the person sign;
- The person signs the document while on video;
- The person signs each page of the document (excluding affidavits and declarations);
- The person signing the document is doing so voluntarily;
- The person signing the document is correctly identified; and
- The name in the document is the same name as the person signing.
Where the person signing the original document is a substitute signatory, the special witness has greater obligations to fulfill in addition to the standard ones mentioned above.
For all documents (excluding affidavit and declarations), special witnesses are required to complete a certificate which clearly identifies that they have followed the correct procedure under the Regulation. Where there is more than one witness, only one is required to be a special witness and complete a certificate.
The special witness is also required to confirm the documents that they have witnessed, a process which the special witness should familiarise themselves with before they agree to witness anything.
If you need assistance with anything mentioned in this article, please do not hesitate to contact our office on 07 5574 0111.