Witnessing end-of-life documents by video during COVID-19

Video conferencing technology can now be used for having important end of life legal documents witnessed. This applies to wills, enduring powers of attorney and advance health directives.

As of 15 May 2020, this temporary regulation will help reduce face-to-face contact and protect the health, safety and welfare of Queenslanders during the COVID-19 emergency. The regulation relates to section 9 of the COVID-19 Emergency Response Act 2020.

During the COVID-19 pandemic, many Queenslanders are turning their minds to end-of-life decisions, including estate planning and authorising others to make decisions on their behalf should they lose capacity to make their own decisions due to illness.

However, due to physical distancing requirements, it is difficult to meet previously existing requirements for witnessing wills, enduring powers of attorney and advance health directives.

Under the regulation, you can now sign one of these documents while a special witness observes in real time over video link.

These temporary changes will make it easier for people to stay at home and reduce physical interactions, while putting their succession plans and end-of-life decision-making arrangements in place.

We will continue to work with stakeholders in relation to modifying arrangements for witnessing of other types of documents.

How it works

To have your documents witnessed by video, you must start with a paper version of the document.

You must then sign every page of it, showing each page to the witness as you go. It must be clear that you are the person signing the document and that you are doing so freely and willingly.

Once you have signed the document using video conferencing technology in front of the special witness, you must send them either:

  • the physical signed document (e.g. by post or courier)
  • a scanned copy of the signed document.

The witness must then:

  1. print the document (if sent electronically)
  2. sign each page
  3. complete and sign the special witness certificate to accompany the document
  4. return them to you or someone else (e.g. another witness if they are also signing the document).

The special witness certificate confirms that the document was signed and witnessed using the modified arrangements, including the steps the witness took to verify your identity and the process followed for signing and witnessing the document.

Making documents this way may mean more than one version of the same document is created.

You must keep all of the following documents together:

  • your original signed document
  • any other version of the same document signed by the witness (e.g. a print out of a scanned document that was returned to you by the witness)
  • the special witness certificate.

You do not have to have your documents witnessed by video—you can still choose to follow the original requirements if you can safely find a witness to sign them in person.

Special witness

To protect against fraud and elder abuse, only a small group of special witnesses can endorse documents in this way.

They are:

  • an Australian legal practitioner
  • select Justices of the Peace (JPs) or Commissioners for Declarations (Cdecs)
  • a JP or Cdec employed by a law practice that prepared the document
  • a notary public
  • an employee of the Public Trustee (for a will prepared by the Public Trustee)
  • a JP or Cdec employed by the Public Trustee (for an enduring power of attorney or advance health directive prepared by the Public Trustee).

How to use the modified arrangements

If you wish to make a will, enduring power of attorney or advance health directive using the modified arrangements you can:

  • get a lawyer to prepare one for you—contact the Queensland Law Society for a list of practitioners
  • ask the Public Trustee to make one for you—contact the Public Trustee of Queensland
  • make one yourself and then contact a special witness to help you witness it.

We will provide more information about the availability of approved JPs who can witness documents using the modified arrangements soon.

More information

Learn more about these changes in the Justice Legislation (COVID-19 Emergency Response-Wills and Enduring Documents) Regulation 2020.