Powers of Attorney Update COVID-19 | Private Client
In light of current circumstances, the Bailiff has issued a Direction regarding Powers of Attorney executed pursuant to the Powers of Attorney (Jersey) Law 1995.
Article 3(2) of the Powers of Attorney (Jersey) Law 1995 provides:
“A registrable power of attorney shall, subject to paragraph (5), be duly executed if it is signed by the donor, or acknowledged by the donor to have been signed by the donor, in the presence of one witness who is not a party to the power of attorney and who:
- if the power is executed in Jersey, is a Jurat of the Royal Court, a member of the States, an advocate of the Royal Court, a solicitor or a notary public; or
- if the power is executed outside Jersey, is one of the persons mentioned in sub-paragraph (a) or one of the persons specified in Schedule 1.”
In view of current circumstances, the Court has been invited to consider whether or not it is possible for this provision to be complied with in circumstances where it is not possible or appropriate for an advocate or solicitor to have direct contact with a client without creating a risk to health.
It is proposed that the lawyer and client established contact by video conference during which the client signs the document, then posts or delivers it in some other way to the lawyer who then at that stage appends their signature to the document.
The question arises as to whether in those circumstances it can be said that the donor of the Power of Attorney has executed it “in the presence of” one of the prescribed witnesses.
In view of the circumstances in which this matter has arisen, I direct that the Court will be content to accept documents executed in this manner.
This is subject to two caveats
First, the Power of Attorney itself should indicate on its face that this was the process by which it was executed.
Secondly, the lawyer arranging for execution in this matter should remember one of the vices which the relevant provision was intended to meet, namely to reduce the risk of a person being subjected to undue pressure so as to execute a Power of Attorney by ensuring it was executed in the presence of an independent third person.
Accordingly in all circumstances where such a document is executed in this manner, it is necessary for the lawyer in question to ensure, prior to execution by the donor over video link, that the donor is not in the presence of any third party whose presence might give rise to concern and that may not be acting of their own free will.
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