Execution of legal documents in an ever-changing environment

As a firm which prides itself on being practical when working with our clients, there has been a real need to adapt what we do in the current COVID climate. One of the toughest problems we face, when it comes to being practical, is complying with certain legal requirements. To the credit of our government and parliament, we are finding that the law is adapting to allow practical solutions to new problems; problems which stem from not being able to meet with people face to face due to social distancing regulations.

Our firm, as did many others, made the decision in the current environment to cease all non-essential face to face interactions in an effort to protect the public, our team, our clients and our families. For the most part, the world can still tick along without face to face meetings. However, up until recently, this was not so when it came to the witnessing of documents, which needed to take place in person and for many documents, required to be before a particular witness such as a lawyer or Justice of the Peace.

Recently, new laws came into effect which facilitate execution of a much wider variety of documents electronically. 

The Electronic Transactions Regulation (“the Regulation”) has now been updated to allow witnessing and attestation of documents via video conferencing. This provides us with a practical solution for witnessing execution of many documents, including:

a. wills;

b. powers of attorney;

c. appointments of enduring guardian;

d. deeds and agreements;

e. affidavits; and

f. statutory declarations.

We can also verify the identity of clients via video conferencing – something we need to do for every client.

There is a specific process required for executing/witnessing documents under the Regulation and this process needs to be followed for the document to be valid.

There was an obvious need for the Regulation in the current climate of social distancing. These changes will assist us and our clients greatly, particularly in the realms of estate planning, finance and litigation for example. While it certainly makes life easier for us and our clients, we cannot get too comfortable with this new normal. Unfortunately, these new arrangements won’t be with us forever. Pursuant to the COVID-19 Legislation Amendment (Emergency Measures) Act, the changes under the Regulation will automatically expire after 6 months unless Parliament resolves to have them expire earlier.