New Zealand Law Society - In-person witnessing/signature of documents by lawyers at Alert Level 3

In-person witnessing/signature of documents by lawyers at Alert Level 3

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has prepared the following guidance for lawyers on witnessing and signing legal documentation during Alert Level 3. This guidance is based on legal advice taken by the Law Society. It updates our earlier guidance on signing legal documents during Alert Level 3, sent via the Law Society’s Covid-19 email update on 30 April and our Property Law Section’s email update of 24 April 2020. This information is intended to assist lawyers to manage situations where it is not possible to witness and sign legal documentation remotely.

The primary purpose of Alert Level 3 is to prevent the spread of COVID-19. Anyone in an area covered by Alert Level 3 must remain at their current home or place of residence, except for essential personal movement, and maintain physical distancing. These restrictions mean some people won’t be able to execute important documents remotely in a manner that complies with formal legal requirements. Examples include wills, enduring powers of attorney, and Authority and Instruction Forms for e-dealings. The guidance provided will help you work with your clients to enable them to navigate these complexities.

The provision of mobile business services is not prohibited under Alert Level 3. Therefore a lawyer can lawfully provide services at a client’s private dwelling or public place under the COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020 provided relevant infection control measures have been taken and physical distancing is maintained at all times. An example of a service would be enabling the signing and witnessing of documents to meet formal legal requirements.

In-person witnessing/signing of documents should be done as a last resort only. If a client is able to make suitable arrangements to execute the documents remotely, or if the execution of the documents is not urgent, then you should not attend your client’s private dwelling (or a public place) for this purpose.

If you decide to go ahead with in-person witnessing/signing of documents then keep the number of people you have contact with to an absolute minimum, ideally just one person. You must record the contact details of all people present and supply your own to your client if they do not already have them.

A COVID-19 Safety Plan (including relevant infection control measures and physical distancing) must be put in place (by the firm or the sole practitioner) before undertaking this work. Before considering in-person witnessing/signing of documents you must consider whether this can occur remotely, including whether any accompanying legal advice can be given over the telephone.

A COVID-19 Safety Plan for the signing/witnessing of documents

  1. Clients (or members of the public that you are offering document witnessing/signing services to) should be advised in advance of the safety plan in place and what will be required of them. An example of this advice is below.
  2. Arrange to meet at the client’s dwelling or a public place. Masks should be worn by all those present.
  3. Advise the client of when you will be arriving and where you will be leaving the document to be signed/witnessed (for example on the doorstep). Take a paper weight (or equivalent) to weigh down the paper so it does not blow away (remember to wash or sanitise any document cover, such as a plastic sleeve).
  4. Wash or sanitise hands before handling any documentation.
  5. Place the document to be signed or witnessed in the arranged place.
  6. Ensure physical distancing and move back at least two metres.
  7. If the document requires accompanying advice this can be included in writing with the document. Alternatively you can speak to the client over the telephone prior to or at the same time as the document signing/witnessing occurs.
  8. The client can then move forward and sign the document.
  9. Clients need to use their own pen for signing.
  10. When the client has finished signing the document please ask the client to move back two metres.
  11. If the document needs to be witnessed (or oath/declaration taken) you can then move forward and sign the document.
  12. Ensure you wash or sanitise your hands when you have finished handling the document.

Information you should provide to clients includes:

  1. Your safety is our top priority. We will be wearing a mask and ask that you do the same.
  2. We need to ensure physical distancing (two metres) at all times during the signing of the document.
  3. We will drop the document at the arranged place and then we will move back two metres to allow you to sign.
  4. Before touching the relevant document please ensure you have washed or sanitised your hands.
  5. When signing the document please ensure you touch the document as little as possible.
  6. Use your own pen for signing the document.
  7. If the document needs to be witnessed (or sworn/affirmed), we will ask you to move back two metres, then move forward to sign the document.
  8. Once the process is complete you need to wash or sanitise your hands.

The Law Society has received further advice that clients cannot attend your law firm or use your carpark to sign documentation. The only stated exception to on-premises client contact prohibition (including car park contact) is the collection of goods – this does not extend to services.

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