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In its 2019 report on e-signatures, the Law Commission concluded that the remote witnessing of other documents including deeds may not be permitted. However, the Industry Working Group suggests that certain types of e-signature may be used to sign a deed. If there is any uncertainty, very careful consideration should be given to use of e-signatures as there is a risk of invalidating the execution if the signature is not witnessed and attested properly. Consider whether a simple contract can be used instead of a deed, in order to make the execution process more straightforward. Build an evidential trail which could include instructing the witness to use the same device or wifi/internet server as the signatory so that you can check the IP address afterwards, or again an online or telephone meeting could be arranged and an attendance note taken.
agreement to use e-signatures at an early stage in the process will assist if there is a dispute later as to whether there was an intention to execute a document using e-signatures.
If a proposed signatory is a corporate entity, check that its constitutional documents do not prevent the use of e-signatures and that the individual signatory has authority to e-sign on the entity’s behalf. On the other hand, if the proposed signatory is a consumer or individual outside of a business context, it will be important to take appropriate steps to minimise any risk that the client does not understand the consequences of signing a document.
Plan ahead by identifying any risks and devising a plan for managing them. Advise the client of the same in order to mitigate against the potential exposure to a negligence claim if the transaction is subsequently challenged. Keep an audit trail, for example by saving a copy of the executed documents, the completion certificate if there is one, and any emails containing signing instructions so they can be found at a later date. Keep good file records and make attendance notes where appropriate. Finally, agree with the client and any third parties what the storage and retention arrangements will be. ■
How to manage the risks
Map out your process. There are a number of helpful resources to consider including several from the Law Society and a checklist produced by the Association of Corporate PSLs which sets out a non-exhaustive list of points to consider when arranging the electronic execution of corporate or commercial documents using an online platform. The Association of Professional Support Lawyers and London Property Support Lawyers Group has also produced a best practice guide for real estate transactions. Ensure that the signatories have been properly instructed on how to apply an e-signature.
Communicate. It is important to obtain the agreement of your client, the solicitor on the other side (if applicable) and any other stakeholders. As we have already said, obtaining written
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Naomi House & Jacksplace are our chosen Charity of the Year for 2022/2023
Jacksplace is the only hospice for young adults in the south of England. It is an environment perfectly suited to young adults and provides the independence, privacy and dignity they deserve. The hospice gives opportunities for the young adults to socialise and relax, whilst their complex medical needs are being met.
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Over the last three years, the average annual cost of delivering all the hospices’ plans and services is £8 million. The majority of the charity’s income comes from the generous donations of individuals, groups and companies. It is this dedicated fundraising that allows the hospices to offer its services free of charge and to continue to be there for families on good days, difficult days and last days. ■
aomi House & Jacksplace provide expert hospice care to life limited and life threatened children and young adults who have complex health care needs. Across the hospices, they support more than 550 families from central southern England. The hospices are there for the whole family and offer practical, emotional and spiritual support throughout their child’s life and after death. Naomi House nursing and medical staff provide specialist nursing care, enhancing short lives and helping families make the most of precious time with their children. In the hospice you will find a myriad of toys and games, a sensory room and spaces for music, art and messy play.
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