What to Do When the Signatory Cannot Attend in Person
Table of contents
When the signatory cannot attend, nobody can sign or attend in their place. A notary witnesses a signature by watching the named person make it. What you can change is where the signing happens, who signs for a company, or whether the document needs a witnessed signature at all. A certified copy, for example, does not.
Key takeaways
- A certified copy does not need the document's owner to attend. A witnessed signature, oath or declaration always needs the signatory.
- For someone unwell or in care, the question is whether a notary can come to them, and whether they have the capacity to sign.
- For someone interstate, use a notary near the signatory. For someone overseas, the act happens where they are.
- A company may have another officer who can sign under its execution rules.
- A power of attorney solves a long absence, but only if it is signed while the person is still available.
Why can't someone else attend for the signatory?
A notary's certificate says that an identified person signed in the notary's presence, understood the document and signed freely. Every part of that statement depends on the named person being in front of the notary. That is why "can my brother bring it in for me" has no good answer. The person who signs has to be in front of the person who certifies.
What varies is where that meeting happens, who the signatory is, and whether the thing you need actually requires witnessing at all. Those three questions resolve almost every version of this problem.
Does this act need the signatory present?
Not everything does. If the requirement is a certified copy of a document, the notary compares the copy with the original. The person who owns the document need not attend, and often does not. Anyone holding the original can present it, with their own identification.
If the requirement is a witnessed signature, an oath or a declaration, the signatory must attend. There is no delegation, no proxy and no exception.
Sorting your bundle into these two piles first often shrinks the problem to one document instead of six. Check the receiving body's wording carefully. "Certified copy" and "signed before a notary" are different requests, and a family member can often handle the first one alone.
What are the usual reasons, and their fixes?
| Situation | Restart from |
|---|---|
| Only a certified copy is needed | Nothing: the owner need not attend |
| Unwell or in care | Asking whether a notary can attend, and checking capacity |
| Interstate or remote | A notary near the signatory |
| Overseas | An Australian embassy that offers the service, or a notary there |
| Company officer unavailable | The execution rules: another officer may sign |
| Unavailable for a long time | A power of attorney, set up in advance |
| Video witnessing assumed | Confirming with the notary and the receiving body |
What if the signatory is unwell or in care?
Some notaries will attend a hospital, an aged care facility or a home. Explain the location and the circumstances when you ask, because the notary will need to be satisfied that the signatory understands the document and is acting freely. The notary may also want to speak with the signatory alone for part of the appointment, away from family members who stand to benefit.
Where capacity is genuinely uncertain, that is a medical and legal question before it is a notarial one. A notary who is not satisfied will decline, and should. Get advice first, from the person's doctor and a solicitor, rather than booking and hoping. The notary's checks are explained in capacity and duress checks.
What if the signatory is interstate or overseas?
Interstate or remote. Use a notary near the signatory rather than moving the signatory. A notarial act can be performed wherever an Australian notary practises. The document then travels to the Department of Foreign Affairs and Trade (DFAT) and onward as usual. A document can sometimes be signed in counterparts, with each party signing a separate copy, where the document's own terms allow it. Check, because not every document does, and a foreign registry may still want one original.
Overseas. The act happens where the signatory is. Depending on the document and the destination, that means an Australian embassy or consulate that offers notarial services, or a local notary in that country followed by that country's own authentication. Australia is a party to the Hague Apostille Convention, so a document apostilled in another member country is generally usable here. Check the other country on the HCCH status table on the day. See notarial services at Australian embassies. Some embassy services are listed on Smartraveller.
What if the signatory is a company officer?
Companies have their own execution routes. Under an Australian company's rules, a document may be signed by two directors, a director and a secretary, a sole director who is also the secretary, or an attorney appointed under a power. Often the officer who cannot attend is not the officer who must sign. Check the company's constitution and the document's execution clause before assuming a particular person is required.
A foreign receiving body may still ask for a named officer, or for evidence of who holds which office. Raise that with the notary when booking, so the certificate records what the receiver needs.
What if the absence will be long?
Deployment, extended medical treatment, remote fieldwork and long travel all create the same problem. The fix is a power of attorney, signed while the signatory is available, that lets an attorney sign later. It must be set up in advance. It does not help once the person is already out of reach. The form, the witnessing and the overseas acceptance all need to be right, so it is worth advice from a solicitor rather than a downloaded template. See powers of attorney and declarations.
Powers of attorney for use in Australia follow state or territory rules, which differ. A power for use overseas usually needs to satisfy the destination's law as well, and many foreign registries want their own form. Ask both ends before the signatory leaves.
Can the signatory sign by video instead?
Whether a signature may be witnessed by video depends on the document, the jurisdiction, and, decisively for overseas matters, whether the destination will accept it. Many foreign authorities still expect a wet-ink signature made in physical presence on anything they will legalise. The receiving authority decides, not the notary. Treat remote witnessing as something to confirm at both ends, never as a default. The options are explained in video notary services.
Is a Justice of the Peace an option?
For a document that stays in Australia, sometimes. A Justice of the Peace can witness many domestic documents at no cost, and some JPs will attend a person who cannot travel. But a JP is a witness for Australian purposes only. A JP's signature is not recognised by foreign authorities and cannot be apostilled by DFAT, and some state JP bodies tell their JPs not to witness documents for use overseas at all. For anything going abroad, a JP does not solve the problem. The signatory still needs a notary, or an official where they are.
Common mistakes
- Sending a relative with the document. A relative can present an original for a certified copy, but cannot sign or swear for the signatory.
- Pre-signing to save time. A signature made before the appointment cannot be witnessed. The document has to be signed again on a fresh copy.
- Leaving the power of attorney too late. Once the person has lost capacity or is out of reach, it can no longer be signed.
- Forgetting the certified copies. Copies of the absent person's passport or certificates are covered by document notarisation and rarely need them present.
How do you plan around an absent signatory?
- Work out who must sign each document, from its execution clause and the receiver's instructions.
- Split the bundle into copy-certification items and signature items.
- Deal with the copies first, since they depend on no one's availability.
- Arrange the signing where the signatory is: near them, at their bedside, or in their country.
- Build the timetable around the one document that genuinely needs the absent person.
Where the absence is foreseeable, put the power of attorney in place early. It is the only tool on this list that must exist before the problem does.
Here is an illustration, not a real case
A Darwin family needs their grandmother's signature on a power of attorney for her flat in another country, plus certified copies of her passport and marriage certificate. She is in an aged care home after a fall. Her grandson takes the original passport and certificate to a notary for the copies; she does not need to attend for those. For the power of attorney, the family asks a notary whether a visit is possible. The notary asks to speak with the grandmother alone, is satisfied she understands and is signing freely, and witnesses her signature at the home.
In short
No one can attend a notary in place of the signatory, because the notary certifies that the named person signed in front of them. Start by checking whether a certified copy is all that is needed, since that needs no signatory. Otherwise, move the signing to where the person is, use another company officer, or put a power of attorney in place before a foreseeable absence. Confirm video witnessing with the receiver first.
People also search for
- Can a notary witness a signature remotely?
- Can a power of attorney be signed online?
- How does a notary check capacity?
- Do you always need a notary appointment?
- Do Australian embassies offer notarial services?
Stuck with a signatory who cannot attend? Send us the document and the situation, and we will explain each step before you book.
Frequently asked questions
Can my spouse sign on my behalf?
Not unless they hold a power of attorney that covers it, and not for documents that must be signed personally. Signing another person's name without authority is a serious matter, not a shortcut.
Can I sign at home and post it to the notary?
No. The notary must see the signature made. A pre-signed document has to be signed again, although sometimes a certified copy of it is what was really needed.
Will a Justice of the Peace visit instead?
A JP can witness many domestic documents at no cost, and some will attend. But a JP's signature is generally not accepted overseas, so for anything going abroad this does not solve the problem.
Does the signatory need identification for a hospital visit?
Yes. Current photo identification is still required, and it is the item most often forgotten when a family member arranges the appointment.
Can someone else bring in the original for a certified copy?
Usually yes. A certified copy compares the copy with the original, so the person holding the original can present it with their own identification.
My father is in another state. Does he have to travel?
No. He can sign before a notary near where he lives, and the document then goes to DFAT and onward as usual.
The signatory is overseas. Can they sign before an Australian notary by video?
That depends on the document and on whether the receiving authority accepts a remote act. Many do not, so the usual answer is to sign before an official where the person is.
Our director is unavailable. Can another officer sign?
Often yes, depending on the company's constitution and the document's execution clause. The receiving body may still want evidence of who holds which office.
What if the notary is not sure the signatory understands the document?
The notary will decline, and should. Where capacity is uncertain, get medical and legal advice before arranging another appointment.
Can a power of attorney be signed after the person becomes unreachable?
No. A power of attorney must be signed while the person is available and has capacity, which is why it needs to be set up in advance.
