Coronavirus: Making wills and assigning powers of attorney

Over the last few weeks we have had a lot of contact from clients with questions about making wills and putting powers of attorney in place. These are important documents to have and it can help to give a little peace of mind knowing that you have sorted this out.

01 April 2020

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We have never seen such rapidly changing circumstances, and new guideline procedures for drafting and signing wills and power of attorney have been issued. 

The good news is that we can, of course, help you with your will and power of attorney, we might just have to make some changes to how we deal with taking your instructions and how you deal with signing the documents. We are all working from home, and easily contactable on our usual phone numbers as well as by email and mobile numbers. Importantly, the government has recognised us as ‘key workers’ and our team is prioritising the preparation of all will and power of attorney instructions.

How can you get advice and documents drafted without meeting?

We are more than happy to take your instructions over the phone or if you prefer we can send you a will and power of attorney questionnaire for you to complete and email back to us. We will then call you to confirm your instructions and talk through your personal circumstances.

How can you sign your will and power of attorney?

We have never known the legal profession to change rules and issue guidance as quickly. The adjustments of the rules enable us to continue to support their clients to enable them to grant wills and powers of attorney while adhering to the governments social distancing rules to avoid the spread of Covid-19, but also to keep robust procedures in place to prevent fraud and undue pressure.

Wills

Normally you must sign your will at the bottom of every page in the presence of an independent adult witness who is aged over 16 and not mentioned in the will or a close family member.  If you are still able to sign in the presence of a witness, this is the best option.

However, as we are not allowed to meet with others out with our home it may be difficult for you to find an independent witness.

Therefore I have noted below the different options which are available to you:-

  • You can sign your will in the presence of a witness who is 2m away from you.

However, this would involve your witness handling papers which you have handled and they, or you, may not be prepared to do this.

  • Video conferencing

Emergency legislation has just been passed to allow solicitors to witness will signing by video call. We are using FaceTime, WhatsApp, Zoom, Facebook messenger and other video call apps more in the last 2 weeks than ever before (particularly in relation to Powers of attorney, see below). If you have any video call apps on your phone, Ipad, computer, a solicitor could watch you sign, you then return the signed will to your solicitor and they can then sign as witness. 

  • You can sign your will on every page with no witness.

We would not normally suggest doing this as it isn’t best practice but it would still be a validly signed will. Extra steps would need to be taken before that will could be relied upon properly, involving someone providing affidavit evidence that the signature is yours.  It might be prudent to speak to us on the phone at the same time as you sign the will so that we could, if necessary, provide further evidence that you have legal capacity and are not acting under pressure from anyone.

We are advising clients to keep a diary note and get back in touch once restrictions are lifted so that wills can be re-signed and ‘properly’ witnessed.

Powers of Attorney

A power of attorney must be witnessed and signed in the presence of a practising advocate, solicitor or doctor. The advocate, solicitor or doctor must then sign a certificate confirming that you have full legal capacity and are not acting under pressure from anyone else. The Law Society of Scotland has suggested that it is permissable to do a video conference where a face-to-face meeting is not possible, in overview-

  1. We would send you the Power of Attorney by email (a PDF version) or by mail if you do not have access to a printer (for as long as this is possible).
  2. The solicitor would call you and interview you to confirm that you understand the nature of the deed which you are to sign, its purpose and when it can be used.
  3. If the solicitor is satisfied that you understand the nature and effect of the deed they will ask you to sign the deed and must see you do so – again, video call apps are coming into their own. The solicitor can then sign the required certificate.
  4. We can still proceed even if there is no other witness present. You would then return the deed to us (once you can) and the solicitor would attach the certificate they signed to your deed and arrange for this to be registered at the Office of the Public Guardian.
  5. We also need the consent of your appointed attorneys that they are willing to act – consent forms can be emailed to the attorneys for them to sign and email back

Contact Us

Please contact us if you have any questions – our usual office numbers are being diverted and we are at home waiting to hear from you.

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