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Victorian lawyer flags ‘major flaws’ in state’s electronic signing laws
A Melbourne-based lawyer has sounded the alarm on what she said are significant gaps in new regulations surrounding Victoria’s electronic signing laws.
Emma Musgrave
Rigby Cooke Lawyers partner Rachael Grabovic said the new regulations, which allow audio-visual signing and witnessing of Wills and Powers of Attorney in Victoria, will negatively impact older Australians, particularly during lockdown-type situations spurred by the COVID-19 pandemic.
“While this legislation might normally be used in emergency circumstances, COVID has created more instances where physical meetings aren’t possible.
“Theoretically, it is a great option, but in practice we’re seeing a number of barriers for older Australians that might mean their estate planning documents may not be executed until they can meet face to face with their witnesses.”
Ms Grabovic acknowledged that while “teething problems” are expected with the introduction of new legislation, she worries this demographic is unlikely to easily benefit from the change, going so far to say that an increase in virtual meetings “may open the elderly to abuse, due to the limited view that legal advisers have of their client” in these settings.
“Unfortunately, we still face challenges where older clients are being coerced by family members, and during virtual meetings, it’s a lot harder to determine nefarious intentions,” Ms Grabovic said.
“Body language is a key way to gauge whether someone is being bullied to make certain changes to their Will – fidgeting and foot tapping are all signs of anxiousness and are next to impossible to see when they fall out of the line of sight of the camera.
“On top of that, it’s more difficult for us to determine capacity or a lack of capacity of a client during a virtual meeting because of our limited view of them and their surroundings. It is difficult to determine if there is a family member sitting out of sight who is feeding the client the answers to our questions – answers that we need to determine testamentary or decision-making capacity.
“We also face challenges with hearing barriers. Obviously, as someone ages, their hearing can decline, which is a lot harder to overcome in a virtual setting.
Further, Ms Grabovic said while digital will-writing platforms, such as Safewill, have experienced a strong take-up over the last two years, it “doesn’t guarantee that the resulting document will be accepted as a valid Will by a Court”.
“Recently, I was working with an elderly client who had been hospitalised due to illness and was hoping to make some significant and time-sensitive changes to his Power of Attorney,” Ms Grabovic explained.
“Due to COVID restrictions, the new legislation should have been the perfect solution. We were able to take instructions over the phone (although not the perfect situation) and prepare new documents, and while the legislation states he can sign these electronically, we still faced several challenges.
“Firstly, he didn’t have a computer or smartphone with him and even if he did, and we could make something work with a family member managing the tech side of things, it still wasn’t possible due to a hospital ban on all visitors.
“In instances where the client does have access to devices, their digital literacy might not be comprehensive enough to facilitate a virtual meeting or digital document signature – where does that leave them during a lockdown?
“The steps required to ensure a valid change to a Will or Power of Attorney are much harder to achieve when the client is elderly and faced with visitation restrictions in a hospital, their home or residential care facility.”
In conclusion, Ms Grabovic said: “Ultimately, as with any new legislation, the gaps will be identified and amended over time, but my concern is for those who will fall through the cracks in the meantime while physical meetings just aren’t possible.”
Emma Musgrave
Emma Musgrave (née Ryan) is the managing editor, professional services at Momentum Media.
Emma has worked for Momentum Media since 2015, including five years spent as the editor of the company's legal brand - Lawyers Weekly. Throughout her time at Momentum, she has been responsible for breaking some of the biggest stories in corporate Australia. In addition, she has produced exclusive multimedia and event content related to the company's respective brands and audiences.
Prior to joining Momentum Media, Emma worked in breakfast radio, delivering news to the Central West region of NSW, before taking on a radio journalist role at Southern Cross Austereo, based in Townsville, North Queensland.
She holds a Bachelor of Communications (Journalism) degree from Charles Sturt University.
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