Witnessing documents and COVID-19: A legal conundrum

Witnessing documents and COVID-19: A legal conundrum

16 April 2020 By Jerome Doraisamy
Peter Moran

The outbreak of the coronavirus pandemic is causing headaches for lawyers who need to manage the process of executing documents that require a witness.

Traditionally, the process of witnessing documents has occurred in-person, as a witness is not someone who could verify after the event that a document was properly signed.

The evolution of legal technology has of course seen the profession move beyond such traditional understandings of witnessing documents, but coronavirus has thrown a new spanner into the works of such processes.

In the age of COVID-19 and the subsequent social isolation requirements that have been imposed in Australia, Peer Legal principal Peter Moran explained, lawyers are faced with a dilemma where they are asked to manage the process of the execution of a document that requires a witness, especially an authorised witness, such as an affidavit, statutory declaration or enduring power of attorney.

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“On the one hand, the way to ensure that the process is definitely valid is to advise that the signing and witnessing process needs to happen in-person. Also, meeting with clients in-person allows the practitioner to better interrogate the client and form a view as to things such as voluntariness, intent and capacity,” he said.

“However, on the other hand, and especially where the signing party is in quarantine or lockdown (such as because they have tested positive for COVID-19 or are at a high risk of testing positive or are highly vulnerable person to the risk of infection) the practitioner may be putting the signor and/or the witnesses at risk by requiring them to engage in a face-to-face process.”

This, Mr Moran said, has left lawyers in an “invidious position”.

Does the lawyer put themselves, their staff, their clients and/or third-party witnesses such as pharmacists, doctors and policy, at a health risk with their signing advice? Or, do they assume a liability risk by advising the client to engage in some other process, such as an electronic one or not using witnesses, but which might result in the document not being fully valid?” he outlined.

“Some law societies have sought to resolve this problem by suggesting that practitioners simply decline the instructions. Some courts have sought to resolve this problem by confirming that they will accept unsworn and unwitnessed affidavits for the time being.

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“In my view, both approaches are not very satisfactory, particularly where an electronic option may be far more robust and closer to satisfying if not the literal requirements of the legislation then, at the very least, the purposive requirements.”

As a result, lawyers must take a “pragmatic and common-sense approach” when it comes to advising clients in this period, and they must also be alert “to the particular circumstances”.

In the end, it should be about providing clients with options and letting them determine the nature of the risk they want to assume (rather than the practitioner simply imposing a health risk on the client through the assertion that ‘they have no choice but to do it that way’,” he argued.

“Practitioners also need to make sure they fully understand the technological options available; the risks and benefits of such options and how to actually use such an option to ensure a robust process. There may be some circumstances where a technological option is unfeasible, such as because the signor does not have access to the technology or simply lacks the technological literacy to navigate through a process such as a videoconferencing or online signing system.”

“The practitioner lacking the technological literacy, on the other hand, is not a very good excuse for the parties having to engage in a face-to-face process and the practitioner, if they are not prepared to quickly upskill, should consider a referral to a practitioner who is,” Mr Moran continued.

“Where the signing party (and the practitioner) is comfortable with using technology, clients should be informed that a witnessing process could take place via such technology; that it is a more robust legal process than not using a witness at all and that there is the prospect that such a process might even be upheld as being valid, either through a subsequent decision of a court or legislative reform.” 

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Witnessing documents and COVID-19: A legal conundrum
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