Dispute Resolution
Witnessing Powers of Attorney during COVID-19
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The Powers of Attorney Act 2014 (Vic) outlines the requirements for signing valid powers of attorney, namely:
1. A power of attorney form must be signed and dated by two adult witnesses in the presence of each other and the person granting the power, known as the principal.
2. One witness must be a medical practitioner or a person authorised to witness the signing of an affidavit, such as a lawyer.
3. Each witness must sign a certificate containing a statement that the principal has signed the power of attorney freely and voluntarily in the presence of the witness and appears to have decision-making capacity, as required by that Act.
4. Each attorney must sign and date a statement of acceptance of their appointment.
These requirements have been changed by the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic), which now allows Powers of Attorney to be electronically signed and witnessed with all persons in separate spaces connected by audio-visual link.
Each witness is still required to fulfill all existing obligations under the Powers of Attorney Act 2014, including section 36 of that Act.
The following steps, provided that they occur on the same day, can be used instead of requirement 1 above:
A. The witnesses observe the principal sign the document, either electronically or on hard copy (and the signature of any witnesses physically present).
B. A copy of the document is transmitted, for example by email or fax, to the first remote witness who:
1) signs either electronically or on a printed hard copy
2) writes a statement that the document was witnessed via audio-visual link in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020
3) transmits a copy (again by email or fax) to the next remote witness (if any) who repeats these steps.
Then, once a copy of the power of attorney signed by all witnesses is returned to the principal, he or she must write on it the following statement:
“This copy is a true copy of the power of attorney signed by me and the conditions in the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 have been met”
The principal must then sign and date this statement.
Please note that these Regulations do not include Advanced Care Directives and appointments of Medical Treatment Decision-Makers made under the Medical Treatment Planning and Decisions Act 2016 (Vic).
If your do need a Power of Attorney or an Appointment of Medical Decision-Maker prepared and witness, please contact us. Our office is open and we are able to arrange meeting at our office in a clean and hygienic environment with ample space for social distancing.
