The rules in relation to witnessing wills, guardianship and power of attorney documents are mandated by state based legislation.
Frustratingly, the rules in every state are different, particularly for guardianship and power of attorney documents.
At one end of spectrum in Western Australia, there are dozens of categories of eligible witnesses including virtually all professions.
New South Wales is at the other end of the spectrum, by essentially mandating that lawyers must witness guardianship and power of attorney documents.
If your customer requires New South Wales attorney or guardianship documentation and your firm as facilitating adviser does not have a strong ongoing relationship with a local lawyer who will perform the witnessing role for a fair price, we recommend that you discard any attorney documentation that View prepares.
Some of the most frequently asked questions in relation to witnessing New South Wales documentation are set out below.
Q: Does New South Wales require a lawyer to witness will documents?
A: No. New South Wales (like all states) simply requires two independent witnesses. Neither witness needs any special qualifications.
Q: Can financial advisers be a qualified witness in New South Wales?
A: No. While financial advisers can witness a Commonwealth statutory declaration, this does not allow them to witness attorney or guardianship documentation, including in New South Wales. In other words, simply because a person (ie a financial adviser) is eligible to witness statutory declarations is not sufficient to make them qualified for the purpose of witnessing attorney documents.
Q: Why is New South Wales the only state that effectively forces customers to have a lawyer witness their attorney documents?
A: In New South Wales, the law society has successfully lobbied the government over a number of years to achieve this outcome.
While submissions have been made to relax the rules so that they align with all other States (which allow an array of people to be a qualified witness) if anything, the rules in New South Wales have in fact tightened over time rather than become more flexible.
Q: If I have New South Wales customers and do not require the attorney documentation, is there a price differential for the work that View performs?
A: No, there is no price difference if you or your customer choose to not use the attorney documentation produced by View.
That is, enduring powers of attorney and guardianship are an optional inclusion in the package (i.e. there is no change in price if those documents are not required).
Q: What is the best approach for New South Wales customers that View has seen?
A: Our experience is that the best results are now achieved by finding a geographically proximate conveyancing specialist or general practitioner. Not only does this allow a working relationship to be developed with them by your firm (and therefore improved experience for your clients), because you are providing a regular number of referrals in work that is easy to complete, cross referrals to your firm tend to start to take place.
Q: Can a court registry be a witness to New South Wales attorney documentation?
A: Yes, in theory, court registry is a potential way to have documents witnessed. We have however heard of a number of situations where (having lined up for an extended period) customers have been turned away by the court registry who refuse to witness the documents.
Q: Why does View not provide a panel of lawyers in New South Wales for witnessing purposes?
A: While View has from time to time offered this approach, it became unmanageable and largely ineffective - primarily because of the geographical spread of the population in New South Wales.
Q: Why can’t View witness the documents via Zoom during the online meeting?
A: While View has done this in situations of extreme urgency, the formalities and considerations for remote witnessing of documents across Australia (including NSW) mean that this is not something we recommend.
Q: Why do some New South Wales lawyers argue some specialist provisions in the View attorney documents are not appropriate?
A: In situations where View has seen the relevant feedback first hand, we have generally found that non-specialist estate planning lawyers tend not to place the emphasis on some key provisions that View does.
In saying this, if the local lawyer is the one that is being engaged to witness the documents, any approach that View might otherwise recommend is largely irrelevant.
Q: Will View work with a law firm or conveyancing firm that an adviser partners with for the purposes of witnessing attorney documents prepared by View?
A: Yes, View can certainly assist as helpful in this regard and provide a summary of the situation and an overview of the documentation prepared.
Q: What do New South Wales lawyers generally charge for witnessing attorney documents?
A: Where good relationships have been built between the adviser firm and the local lawyer, we generally see a relatively nominal legal fee of approximately $150 being charged.
Having said this, we’re certainly aware of situations where New South Wales lawyers have stated that their fees would be significantly more than this – often, more than the price for the entire work completed by View.
Q: Can a licenced conveyancer witness EPA and EPG documents in New South Wales?
A: Conveyancers are qualified to witness EPAs in New South Wales, however not EPGs. If a customer would like to engage a conveyancer, they would still need to find a different witness for EPGs.
Q: Will local courts witness power of attorney documents?
A: There does not seem to be any consistency with the approach of the courts.
Often however, the court will refuse to witness because of the inclusion of tailored specific powers in the documents issued by View.
While the clauses that the local courts suggest should be removed could be crossed out and initialled, we strongly recommend against this approach as it undermines the utility of the document.
Q: Do attorneys require their acceptance to be witnessed in New South Wales Enduring Power of Attorney documents?
A: Attorneys are not required to have their signature witnessed. Therefore, they do not need to follow the same process as the principal when signing their acceptance. However, there is no need for the attorneys to sign accepting their appointment until there is the need (if ever) to rely on the documents.
Q: Do guardians require their acceptance to be witnessed in New South Wales Enduring Guardian documents?
A: Yes, guardians are required to have their signature witnessed and the NSW rules need to be followed, however, any Australian lawyer can be a witness. There is no need for the guardians to sign accepting their appointment until there is the need (if ever) to rely on the documents.