Electronic Signatures – Are They Real?

Can I electronically sign or witness this estate planning document?

This is a question often asked, and it is a fair one given the significant role technology now plays in today’s world. During the “unprecedented times” of 2020 we were given a taste of electronically signing various estate planning documents following the passing of emergency legislation in many Australian States in response to the Covid lockdowns. Where people were unable to meet in person to witness the signing of their legal documents, it became necessary for each State to legislate to permit electronic signing and witnessing for a variety of documents. The pieces of Emergency Legislation were largely implemented with an expiration date and they only applied for a limited period of time.

Some States however have seen to implementing amendments to the current legislation in order to make permanent the use of electronic witnessing and in some cases the signing of estate planning documents. Which types of documents can be electronically signed and /or witnessed and how the documents are witnessed was dependent upon each State’s legislation.

Western Australia, Tasmania, South Australia, the Australian Capital Territory and the Northern Territory have not introduced any permanent legislation relating to electronic signing or witnessing of estate planning documents following the Covid Pandemic.

In South Australia, the COVID-19 Emergency Response (Section 17) Regulations 2020 became obsolete on 9 September 2021. In Tasmania, whilst still current, the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (No.2) does not provide for the remote witnessing of estate planning documents. In the ACT the COVID-19 Emergency Response Act 2020 (ACT) permitted the witnessing by audio visual link of the signing of Power of Attorneys and Enduring Powers of Attorney, health directions, Wills and affidavits, however this expired on 31 December 2022. Finally in the Northern Territory documents which require a witness to be physically proximate cannot be signed electronically. This was not changed by emergency legislation.

Victoria, Queensland and New South Wales, however, have each retained or introduced legislation providing for the electronic signing and witnessing for various estate planning documents.

Western Australia

In WA the COVID-19 Response and Economic Recovery Omnibus Act 2020 allowed for the remote witnessing via audio visual link for the signing of affidavits and statutory declarations only. The COVID-19 Response and Economic Recovery Omnibus Act 2020 Postponement Proclamation 2021 (WA) extended Division 4 part 2 of the Act to 31 December 2022, however this has since expired and WA has not introduced any additional legislation regarding the remote witnessing of affidavits, statutory declarations or estate planning documents.

Victoria

In Victoria the Powers of Attorney Act 2014 section 5A outlines a remote witnessing procedure to allow a power of attorney to be electronically signed and witnessed with all parties in separate spaces, via audio visual link, however the parties must all be physically located in Victoria at the time of signing and witnessing.

The Wills Act 1997 has also been amended to add the new subsection 8A-8D which outlines a remote witnessing procedure for the execution and alteration of a Will, subject to stringent requirements. Wills may be electronically signed and witnessed by audio visual link, despite the parties being located in differing states at the time of signing.

In addition, an affidavit may be signed by electronic means as well as be sworn and affirmed by audio visual link under the Oaths and Affirmations Act 2018. A statutory declaration may also be signed by electronic means and witnessed by audio visual link.

It remains however that you cannot certify a true copy of an original document or certify a person’s identity online. This must be completed in-person.

Queensland

In Queensland the Justice and Other Legislation Amendment Act 2021 came into effect on 30 April 2022 making parts of the emergency legislation introduced in Queensland permanent. The documents which can now be electronically signed and witnessed via audio visual link are:

  1. General Power of Attorneys for businesses can be signed by electronic signature, in counterpart and without a witness.
  2. Affidavits and statutory declarations can be signed electronically in counterparts and can be witnessed by a special witness who may be present via audio-visual link.
  3. Deeds can be signed using an electronic signature in counterparts without a witness.

The changes however do not apply to the signing and witnessing of Wills or an enduring document under the Powers of Attorney Act 1998.

New South Wales

In New South Wales the Electronic Transactions Amendment (Remote Witnessing) Act 2021 came into effect in November 2021 and permits the witnessing of the following documents by audio-visual link, even where the signatory, the witness or both are outside of the jurisdiction, provided the documents are made or are required to be signed under an act or law of NSW or were the governing laws for that document are the NSW laws:

  1. Wills;
  2. A power of attorney or an enduring power of attorney;
  3. A deed or agreement;
  4. An enduring guardianship appointment;
  5. An affidavit, including an exhibit or annexure to the affidavit; and
  6. A statutory declaration.

Whilst electronic witnessing is allowed, Wills, powers of attorney and statutory declarations cannot be electronically signed in NSW.

Australia Wide

The Corporations Amendment (Meetings and Documents) Act 2022 came into effect on 23 February 2022 for the execution of documents and on 1 April 2022 for meetings held and documents sent. These amendments include, among others, that:

  1. Deeds and some additional company and meeting related documents may be signed electronically;
  2. Signatories may sign documents and deeds by differing methods in counterparts via any technology; and
  3. Parties to sign a document can sign without signing in the same form and without using the same method.

The implementation of a statutory regime for electronic signatures provides an efficient alternative for parties to a document and those witnessing the signature of others. It can save much time, cost and anxiety in having to travel to another location to add a wet (i.e. real) signature to a document. This in turn can contribute to the more efficient execution of important documents in commercial and other transactions.

However, it remains important to be vigilant when using and relying on modern technology when it comes to significant legal and commercial documents especially in the estate planning space. This may have particular importance when it comes to matters such as elder abuse and questions relating to testamentary capacity. If you intend to remotely witness or electronically sign a provided for estate planning document, it is wise to carefully follow the requirements under the applicable legislative instrument to ensure the correct signing and /or witnessing of the document, as well as to record detailed file notes as to the circumstances surrounding the signing and / or witnessing of the document.

If you wish to find out how Bowen Buchbinder Vilensky can be of assistance to you with your estate planning please feel free to contact our office.

Voluntary Assisted Dying Implemented In WA

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The introduction of voluntary assisted dying legislation in Western Australia was very contentious and divisive. Now that the new legislation is in force, when does it apply and what is the process involved?

On 1 July 2021 the Voluntary Assisted Dying Act 2019 came into effect and eligible West Australians gained access to voluntary assisted dying.

Voluntary assisted dying allows eligible adults to request and access medical assistance to end their life if they are suffering from an advanced, progressive disease, illness or medical condition that is expected to cause death within 6 months (12 months for neurodegenerative diseases). The disease, illness or condition must also cause suffering to the person that cannot be relieved in a manner that the person considers tolerable.

The Process

To initiate the process, a patient must make the first clear and unambiguous request to an eligible medical practitioner for access to voluntary assisted dying.

After the first request is made the patient is assessed by at least two independent and appropriately trained medical practitioners. First, the medical practitioner that accepts the request, referred to as the coordinating practitioner, and if they are satisfied then secondly, the consulting practitioner.

Throughout the process, the patient must make 3 separate clear and unambiguous requests for voluntary assisted dying. The first request mentioned above, a written declaration that is witnessed by two people and can be made after a patient is assessed as eligible, and a final request. The final request can only be made after the end of the designated period (currently a 9-day period beginning on the day that the patient made the first request).

Voluntary

One of the key criteria required to access the voluntary assisted dying process is that it must be voluntary. The person must have the requisite enduring capacity to make the decision for themselves and the decision must be made without coercion.

A person cannot access the voluntary assisted dying process if they have lost their decision-making capacity.

Where possible, every person should carefully consider their treatment wishes while they have decision-making capacity and should ensure that they have valid and up to date estate planning documents, which may include a will, enduring power of attorney, enduring power of guardianship and an advanced health directive, that reflect their current wishes. You may also wish to ensure that your families and health practitioners are aware and informed of your treatment wishes should you become terminally ill, bearing in mind that they cannot access voluntary assisted dying on your behalf.

For legal advice on the voluntary assisted dying legislation, please contact our Wills and Estates team.

Our Wills & Estates Lawyers in Perth provide specialist advice and assistance on a range of estate planning, wills and probate areas on a Fixed Fee Price basis. Our Wills & Estate Lawyers in Perth can help you with understanding, advising and planning:

 Contact BBV Legal to book an appointment today.  Bowen Buchbinder Vilensky has over 25 years of experience providing legal services in Perth.

Estate Planning In a Digital World

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There is no disputing the fact that we now live in a digital and technological world. Here’s what you need to know about estate planning in a digital world.

Personal diaries have been replaced by blogs and social media accounts, books replaced by kindles, bank cards replaced by digital wallets and you can now do most of your shopping from the comfort of your own home. There is no escape from the advancement of technology and as time goes on, more and more of our possessions will be digitised.

The question now is: what happens to these digital assets when you die and how can they be transferred to another person?

What Are Digital Assets?

In simple terms, a digital asset is anything that is stored digitally. Digital assets may include emails, photographs, blogs, websites, electronic documents, cryptocurrency, and content uploaded to social media accounts. Some digital assets may only have sentimental value, whereas others may have significant monetary value. In some circumstances, it may not even be a digital asset at all but rather a licence to use a service.

What Happens to These Digital Assets on Your Death?

At present, access to a person’s digital assets is largely determined by contract and user agreements. For example, some social media platforms will deactivate an account after no access for a certain period. Others may provide the option for an account to be memorialised.

There are currently no laws in Australia that expressly outline what happens to a person’s digital assets on their death. Ultimately, this is entirely dependent on the provider concerned and the user agreement in place which often sets out what is to happen to the digital asset after death.

It is important to note that some digital assets such as cryptocurrency do require prior planning on behalf of the deceased for access to those assets to be granted after death. Cryptocurrencies often rely on access keys or passwords to access the wallet and trading platform, with no alternative access methods generally being available.

How Can I Ensure My Digital Assets Are Transferred to My Loved Ones After My Death?

There are several issues that need to be considered when providing instructions in relation to your digital assets. We recommend that your digital assets be considered as part of your overall estate plan.

To assist your executor and loved ones, you should make a list of your digital assets and consider what you would like to happen with those assets after your death. It is critical for your executor to be able to easily identify and access your digital assets. You may even wish to consider maintaining a register (hard copy or digital) of your digital profile, the services used, and your usernames and passwords used to access such accounts.

Now more than ever, people need to be aware of their available options when considering their estate planning. This certainly now also extends to options regarding digital assets.

Contact our estate planning team today to discuss your options further and receive advice tailored to your particular circumstances.