Last night, the Queensland parliament passed the COVID-19 Emergency Response Bill 2020 (Qld). I understand it is still awaiting assent.
The Act is yet to appear on the Acts as Passed list. Section 25 should be noted which provides (emphasis added) – This Act expires on 31 December 2020.
The purpose of this article is to note and welcome Part 3 which provides follows:
9 Regulation-making power for particular matters relating to documents
(1) This section applies if an Act or a common law rule requires or permits any of the following (each a relevant matter)—
(a) the signing of a document by a person;
(b) the witnessing of signatures;
(c) the certification of matters by signatories, witnesses or other persons involved in the making of a document;
(d) the verification of the identity of individuals;
(e) the attestation of a document;
(f) the production of a document by a person;
(g) the making of a document in a particular form or way;
(h) the following of particular processes for making a document;
(i) the making or signing of a document or certification of a matter by a particular person or class of persons;
(j) the inclusion of particular content in a document;
(k) the recording of information;
(l) the filing, lodgement, giving or service of a notice or other document;
(m) the sighting of a document by a person for a particular purpose;
(n) the publication or display of a notice or advertisement for a particular purpose;
(o) the retention of documents or information.
(2) The Act is taken to include a power to make a regulation as provided in this section.
(a) prescribing modified requirements or arrangements; or
(b) suspending requirements or arrangements.
(3) A regulation under the Act may make provision about a matter incidental to a relevant matter mentioned in subsection (3).
(4) In this section—
document does not include a statutory instrument.
Section 8 provides power for regulation making relating to attendance at places (including perhaps the need for physical presence of witnesses).
The explanatory notes in relation to this Part say (in part):
Part 3 of the bill enables regulations to be made to provide alternative arrangements for how documents are made and used in order to minimise the need for people to be near other people. Importantly, this will ensure that documents associated with end-of-life decision-making and estate planning such as wills, enduring powers of attorney and advance health directives can continue to be made even with the requirements for social distancing. It will also mean that other documents such as deeds and statutory declarations can continue to be made. This will allow a range of personal, business and government matters to continue during the crisis. Property can continue to be bought and sold, deeds can be made, and dealings with government can continue as much as possible within the confines of social distancing. These reforms have been requested by stakeholders, including the Queensland Law Society, and similar reforms are also being made in other states and territories.
We have not yet seen the proposed regulations which will provide for the detail of the permitted changed arrangements but from the AG’s media release earlier today we know that video remote witnessing of Wills and EPOAs is expected.
AG’s Media Release Here
In that media release the Attorney says:
“Modified arrangements could include allowing meetings to be held or inspections carried out using audio visual technology for example.
The making of documents such as wills, general powers of attorney, enduring powers of attorney, advance health directives, statutory declarations, deeds and many other types of documents are also available under the modified arrangements.”
We also note that the Chief Justice of the Supreme Court of Queensland issued Practice Direction No.10 of 2020 in relation to informal Wills and video witnessing. We will comment of this further when we have seen the regulations under the COVID-19 Emergency Response legislation (above).
Thus, will virtual witnessing affect the making of Wills and EPOA?
Yes. As soon as we have some regulations our estate planning lawyers will be offering remote Will and EPOA making and witnessing services that are permitted by them.
This blog will be updated once regulations regarding virtual witnessing is at hand.
Written By Andrew Lind