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Wills and enduring documents during the COVID-19 pandemic

The Queensland Government enacted a number of measures in 2020 to respond to the COVID-19 pandemic.

These included measures to facilitate the electronic signing and remote witnessing of various documents, such as affidavits, deeds, statutory declarations, general powers of attorney for corporations, wills and enduring documents.

Facilitating electronic signing and remote witnessing of these documents has been necessary during the COVID-19 pandemic, allowing legal practitioners to continue providing essential legal services to Queenslanders whose movements have been restricted due to public health directives.

Modified provisions for wills and enduring documents during the COVID-19 pandemic

The modified provisions for wills and enduring documents provided access to essential legal services for residents of certain restricted facilities, which did not allow access to legal practitioners during periods of lockdown, including hospitals, residential aged care facilities, and disability accommodation (restricted facilities). The modified arrangements for wills and enduring documents expired on 30 June 2021.

Since the expiration of the modified arrangements for these documents, parts of Queensland have been subject to two separate periods of stay-at-home orders, and access to restricted facilities has been extremely limited.

Lawyers have not been included in the list of visitors allowed to enter restricted facilities. The expiration of the modified arrangements for wills and enduring documents, together with no access to restricted facilities for legal practitioners, has resulted in residents of restricted facilities being unable to access essential legal services during lockdown periods.

Queensland Law Society considers it imperative that legal practitioners be able to access restricted facilities for the purpose of providing legal services to clients. This is particularly so in light of the expiration of the modified arrangements for wills and enduring documents. A person’s legal representative needs to be able to assist them to create and execute documents such as wills and enduring powers of attorney. These documents can be extremely time sensitive.

QLS has urged the Queensland Government to take immediate action to resolve this issue. The Society has previously advocated that, while it may be appropriate for some specific COVID-19 related measures to have expired, it is necessary to retain the ability to invoke these measures quickly if circumstances change.

A key example is if there are changes to public health directives that lock down restricted facilities again. QLS is in constant communication with the Queensland Government in relation to whether the regulations for wills and enduring documents should be re-enlivened in the event of any future lockdowns.

QLS has also written to the Chief Health Officer on a number of occasions to request that lawyers be granted access to restricted facilities during lockdowns. QLS welcomes recent correspondence from the Chief Health Officer advising that, in the event of future lockdowns, fully vaccinated legal practitioners will be allowed access to restricted facilities to undertake essential legal work, which must be completed face to face.

This correspondence states that fully vaccinated means that a person has received the prescribed number of doses of a COVID-19 vaccine approved for use by the Therapeutic Goods Administration (Pfizer, AstraZeneca, or Moderna) and it has been two weeks since they received their final prescribed dose.

There would likely be other conditions on entry into these facilities to ensure that persons from inside a restricted area do not travel to facilities that are not restricted, to limit movement into and out of restricted areas as much as possible.

The Chief Health Officer is considering how best Queensland Health might implement these requirements during any period of restriction. QLS will keep its members informed of any developments should a further lockdown be instituted.

Guidance to QLS members concerning management issues that may arise as a consequence of COVID-19 is available on the Society’s dedicated COVID-19 resources page.

Permanent retention of some COVID-19 related measures

Separately, QLS has also been a strong advocate for the permanent retention of some of the COVID-19 related measures, including the electronic signing and remote witnessing of affidavits, deeds, statutory declarations and general powers of attorney for corporations.

The QLS Succession Law, Elder Law and Health & Disability Law Committees have carefully considered the potential for permanent implementation of the COVID-19 regulations for wills and enduring documents.

Concerns around having these measures made permanent are related to the potential for abuse, as well as issues of assessing capacity via audio-visual link. There are obligations on legal practitioners to make sure they properly assess capacity and undue influence, and it is widely accepted that it is more difficult to meet those obligations over audio-visual link.

While there is a level of convenience in allowing electronic execution and remote witnessing of wills and enduring documents, this is outweighed by the concerns stated above. Accordingly, QLS is of the view that the risks that arise in witnessing wills and enduring documents via audio-visual link (as regards difficulties in assessing capacity and mitigating the risk of coercion and undue influence) must be further considered before any permanent retention of the regulations can be contemplated. 

QLS has also advocated for a considered consultation process about a virtual execution and witnessing process which might work on a more permanent basis.

Members can read the QLS submission to the Queensland Government on the legislative response to the COVID-19 pandemic, including in relation to the electronic signing and witnessing of documents.

Brooke Thompson is a Queensland Law Society Policy Solicitor.

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