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With the spread of COVID-19 getting one’s own affairs in order is now a priority

Andrew Aitken and Ilana Kacev

The sudden and unexpected spread of COVID-19 has made us all realise that circumstances which are out of our control can change so rapidly. We are now seeing people panicking at supermarkets and stockpiling staple foods, toilet paper and hand-sanitiser.

People are contemplating what will happen if they have to voluntarily or involuntarily isolate for 14 days – who will walk the dog, how will businesses continue to operate and how will they get food during the 14 day quarantine period.

It acts as a reminder of the significance of getting important tasks, including your estate planning, done before they become urgent or simply, futile.

Estate Planning documents you may need:

If you pass away:

Time and time again we come across deceased estates where there was a sudden and unexpected death. In those circumstances, this situation was exacerbated by the fact that the person either did not have a Will or the deceased person attempted a do-it-yourself kit. Where you die without a Will, the relevant State based legislation will govern who can administer your estate and who your estate will be left to (meaning not necessarily who you want).

Whilst a Will-kit may seem like the cheap and easy option at the time, the complications that it can cause when administering your estate and the costs to resolve these complications far outweigh the saving of a Will-kit. In fact, the costs are likely far more than having a robust and comprehensive estate plan prepared for you, which would save not only money, but stress and complications for your family. Like any illness, prevention is better than cure. Investing in the initial upfront costs now will pay off in the long run.

If you lose capacity or are in self-isolation:

Where a person has lost capacity and becomes incapable of managing their own affairs, their attorney appointed under an Enduring Power of Attorney and Medical Treatment Decision Maker/Enduring Guardian will step in. If an Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker/Guardian are not in place at this time, then this will create stress and delay in managing your affairs while someone (who has an interest in your affairs) makes an application to the Victoria Civil and Administrative Tribunal (“VCAT”) or the New South Wales Civil and Administrative Tribunal (“NCAT”) for administration/financial and guardianship orders.

Enduring Powers of Attorney can also be useful even when a person has capacity. For example, if you are stuck overseas or in self-isolation, your attorney can act on your behalf in relation to your property and financial matters. 

What can go wrong with using a Will-kit?

There are various formalities in making a Will that need to be complied with in order for a document to be considered a valid Will. To the experienced lawyer, these formalities are basics, but to non-lawyers it could very well be a case of ‘you don’t know what you don’t know’ and one of these formalities could easily be missed.

What if you asked a lawyer to prepare your estate planning documents but haven’t had an opportunity to sign it because you are in self-isolation?

If you are mid-way through the process with your lawyer and you have to self-isolate due to COVID-19, then you can do the following:

Your Will:

In Victoria, if there are two other people in self-isolation at home with you, they can be witnesses to your Will. This includes family members who are mentioned in your Will. Whilst it is usually preferable to have independent witnesses, there is no legislative restriction in Victoria for people mentioned in your Will being witnesses.

In New South Wales, a willmaker must execute their Will in front of two or more independent witnesses. Therefore, if your family members are receiving a gift under your Will, they cannot act as witnesses. 

If you cannot sign your Will in front of two witnesses (Vic) or in front of two independent witnesses (NSW), we recommend that you continue to sign and date it yourself without any witnesses or in front of one independent witness (if you can). Whilst this Will does not meet the formal execution requirements of a Will, the Court does have the discretion to dispense with formal executions requirements and accept the document as an “informal Will”. 

We would recommend then contemporaneously emailing your lawyer to explain that you have signed your Will informally because you are in self-isolation and without anyone else around you to witness it.

As soon as you are out of quarantine, you should schedule a time with your lawyer to have your Will formally signed.

If you haven’t yet instructed a lawyer to prepare your Will, then it is worthwhile scheduling a time with your lawyer over the phone or a video call over Skype to seek advice about what options you may have and to provide your initial instructions.

Your Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker/Enduring Guardian:

In Victoria, your Enduring Power of Attorney and Medical Treatment Decision Maker:

  • Must be signed in front of two witnesses who are each over the age of 18;
  • One of those witnesses must be an authorised witness and insert their qualification. An authorised witness includes a registered medical practitioner or a person authorised to take affidavits such as a lawyer, judge, Justice of the Peace or police officer
  • If you are in self-isolation, then you won’t be able to get your lawyer to witness you sign those documents, however if you are in hospital being treated, then you can ask a medical practitioner to witness the document as one of the qualified witnesses.

There are a number of other requirements relating to who can act as a witness, so it is crucial that you contact your lawyer to have them confirm that your witnesses are appropriate to act.

In the event that you cannot find the witnesses that you need, then once you are out of isolation you should schedule a time to see your lawyer and have your documents signed.

In New South Wales, you need to sign your Enduring Power of Attorney and Appointment of Enduring Guardian in the presence of a solicitor, barrister or clerk of the Court. These witnesses will not be available to you whilst in self-isolation. Therefore, you need to put these documents in place as soon as possible.

Moreover, each of the persons appointed under the documents will need to sign and accept their role. Whilst there are no witnessing requirements for an attorney, a guardian must also sign in the presence of a solicitor, barrister or clerk of the Court Your attorneys and guardians cannot act for you until they have formally accepted their role. Again, this makes time imperative.

Remember:

What is important to remember here is that you are formulating a contingency plan. Just like with the “doomsday preparation” hoarding supplies, you are putting in place a temporary plan in the event of a worst case scenario. Given the crisis has been labelled a pandemic, it is no longer appropriate to think “it won’t happen to me”.

For any queries about your estate planning needs or advice regarding Probate or informal Wills, please feel free to contact Ilana Kacev (Vic) or Andrew Aitken (NSW) for further advice, they can be reached via email, phone or Skype.

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