Making Enduring Powers of Attorney during the COVID-19 pandemic – legislation changes now allow signing and witnessing by audio-visual link

The current situation we are facing with COVID-19 is extraordinary.  Many people will want to review their affairs and put in place Enduring Powers of Attorney or update their old ones.

You must see your legal advisor to have Enduring Powers of Attorney (EPOAs) prepared.  Many legal advisors are working from home and able to support their clients remotely. 

Changes to signing and witnessing during the COVID-19 pandemic

A major problem arising at the moment while we are required to “stick to our bubbles” and adhere to an alert level three (and indeed, for many elderly clients, alert level 2) directive is that parties to an EPOA cannot be physically present together and so cannot meet the usual requirements for a validly executed EPOA. 

Ordinarily the legislation requires a physical proximity between the person making the EPOA (the donor) and their authorised witness, along with the person or people appointed under the EPOA (the attorney/s) and their witness/es. 

As of 24 April 2020, the law has been updated to amend the way EPOAs can be signed and witnessed, for the duration of the Epidemic Preparedness (COVID-19) Notice 2020 (being three months from 25 March 2020, unless it is extended).   

The changes allow for signing and witnessing of EPOAs via audio-visual link, and the use of scanned or photographed copies rather than one single document. 

It will not be necessary to redo an EPOA into a single document after the Epidemic Notice expires. 

Why is this change necessary?

An Enduring Power of Attorney document which has not been validly signed and witnessed may not be legally valid, which could pose a serious problem when the time comes for the Attorney to rely on their authority, for example when the donor loses mental capacity. 

The Attorney will not be able to act as the donor’s attorney with an invalid document, in which case they would need to go through a time-consuming and costly court process to be appointed to act on the donor’s behalf.

This is a brand new and unprecedented change to the law, and provides a realistic solution for an otherwise very serious problem. 

We urge anybody who wants to make or update an Enduring Power of Attorney to contact their legal advisor to discuss the new law and how it might be used to assist in their circumstances.