The information contained in this article is current as at 16 April 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.
The coronavirus pandemic has meant the enforcement of social distancing and self-isolation in order to reduce the spread of the virus. This also involves the closure of various services and the implementation of new social distancing requirements when leaving the house. As a result of these restrictions, it would seem that the need for Powers of Attorney has become increasingly important to assist in circumventing some of these difficulties, particularly for those in isolation who are unable to leave their home. Nominating a friend or family member to act on your behalf if you become ill or are unable to leave the house can provide you with peace of mind during these uncertain times, especially if you are within a high risk category.
Powers of Attorney are usually made in two separate documents. The Enduring Power of Attorney allows you to nominate a person to make decisions on your behalf in relation to financial and/or personal matters. The Enduring Power of Attorney can specify whether the powers granted to the attorney should be active whilst you still have capacity, for example enabling a friend or relative to attend the post office or bank on your behalf, or only if you have lost decision making ability. The second document is the Appointment of Medical Treatment Decision Maker, which enables you to nominate an individual to make medical treatment decisions for you in the event that you lose capacity.
Witnessing requirements during COVID-19
In Victoria, you are required to have two witnesses who are over the age of 18 to witness and sign the document, with one of these witnesses being an authorised witness (such as a lawyer or medical practitioner). Currently, these documents cannot be witnessed via Skype, FaceTime, Zoom or any other similar platform, as they do not meet the signing requirements ‘in the presence of’, which is required for witnessing the document.
A COVID-19 Legislation Amendment (Emergency Measures) Act 2020 has been passed by the NSW Parliament in response to the COVID-19 Pandemic. This Act will allow regulations that alter arrangements in relation to signing and witnessing documents, as well as verifying identity. There is the expectation that a similar Act may come forward in Victoria which may override regulations in certain circumstances and prescribe different arrangements for the signature and witnessing of documents. We will be sure to keep you informed and updated if such Bill is introduced and enacted in Victoria.
For now however, these document must be signed in the presence of a qualified lawyer or other prescribed witness.
How can Sharrock Pitman Legal assist?
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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For further information contact
Dan is an Associate Lawyer at Sharrock Pitman Legal.
He deals with areas of Charities & Not-for-Profit Law and Commercial Law. For further information, contact Dan on his direct line (03) 8561 3325.