During your appointment, there will be occasions when you will be asked to witness documents for people living with disabilities. The suggestions below can help you provide JP functions to these service users in an appropriate way.
Ascertain the person’s ability to identify whether an individual’s disability affects their capacity to complete the documents. In all cases, you should ensure that the person proposing to sign understands the meaning and effect of the document. Only if the disability affects the person’s capacity to understand or complete the document do you need to take special steps.
Always speak directly to the person who is seeking your services. For example, ask questions using ‘you’ and not through the accompanying carer or the friend, even if the relative or carer acts as an interpreter. Speaking exclusively to the interpreter (for example ‘can you ask them….’) can make the person living with a disability feel left out of the conversation.
Remember that if you are uncertain or feel uncomfortable about a person’s ability to understand a document, or you suspect they may have been coerced, you can decline to witness and refer the person to a suitable service (see the Information and Referral Contacts section of the handbook).
16.1 How to witness for people living with disability
16.1.1 People living with a physical disability
There are many types and degrees of physical disability. There may be simple things you can do to assist a person living with a disability while providing your services. For example, if you are witnessing a document for a person who uses a wheelchair, ensure that they have a firm writing surface on which to sign the document comfortably.
If the person cannot sign the document but can make a distinguishing mark rather than a signature, write these words under that mark before adding your signature as the witness:
For a document other than an affidavit
This is the mark of ______________ made in my presence, as they are unable to sign their name.
For an affidavit
Sworn/affirmed at [place] this day of ___20___ by [name of person swearing or affirming the affidavit contents] who, being unable to sign their name, have made their mark in my presence
Before me ___________.
The oath or affirmation you administer is as follows:
|I [name of person making oath], swear [or promise] by Almighty God [or the person may name a god recognised by the person’s religion] that this is my mark, and that the contents of this affidavit are true and correct.||I [name of person making affirmation], solemnly and sincerely affirm that this is my mark and that the contents of this affidavit are true and correct.|
If the deponent is unable to sign the document or make any distinguishing mark, and you are satisfied they understand the nature and effect of the document, and would sign it if they could, you can certify the document as follows:
For a document other than an affidavit
I certify that __________________ understands the nature and effect of this document but is physically incapacitated from signing or making a mark.
For an affidavit
A deponent who is unable to sign their name or make a mark, may still swear, or affirm an affidavit.
The jurat should be endorsed to reflect this:
Without the deponent fixing any mark or signature,
As they are unable to sign their name
this affidavit was sworn/affirmed at ____________ [place]
in the State of Victoria, this .... day of _______ 20__.
before me ________________________ [your signature]
[Name, Address and Title of witness]
16.1.2 Vision impairment or illiteracy
The certificate need say no more than:
I certify that I read this affidavit to the deponent.
signed: [your signature]
16.1.3 Hearing impairment
You can use an interpreter to communicate with a person who understands sign language. There are accredited Auslan (Australian Sign Language) interpreters who can be arranged when making the appointment.
If an interpreter is used to make an affidavit or statutory declaration by a hearing-impaired person, the normal interpreter's oath/affirmation is used. This declares that they will interpret to the best of their ability. The interpreter’s oath for an Auslan interpreter is the same as for an interpreter for a non-English speaking person.
If an interpreter is not present, or the hearing-impaired person cannot communicate in sign language, you can offer to communicate with the person in writing. Remember that some people with a hearing impairment are not fluent in English and consider it as a second language. Take extra care to be satisfied that the person understands what you write, as well as the nature and effect of the document. Destroy your written communication once you have witnessed the document.
For an affidavit under these circumstances, administer the oath/affirmation as follows.
- Once the deponent has signed the affidavit, hand them a piece of paper on which is written: Is this your name and signature?
- Upon making an affirmative gesture, the person should then be asked in writing:
Do you swear (or promise) by Almighty God [(or the person may name a god recognised by the person’s religion)/solemnly and sincerely declare and affirm that the contents of this affidavit are true and correct.
- Again, an affirmative gesture is required.
16.1.4 People living with an intellectual disability
A person living with a significant intellectual disability usually has a guardian or attorney who makes decisions on his or her behalf. If you cannot ascertain that the person has a guardian acting on their behalf, do not witness the document. Instead, refer them to the Office of the Public Advocate, who can arrange for a guardian. (For Office of the Public Advocate contact details, see the Information and Referral Contacts section of the handbook).
A cautious approach is best
It is important to allow adequate time and engagement with a person seeking JP services to ensure they can express their wishes to you. In some circumstances, you may decide not to witness a document if it is evident the person cannot understand the nature and impact of the document.