Perhaps some have had extra time to knuckle down on their growing to-do lists, or perhaps the growing uncertainty of the COVID-19 pandemic has brought to the forefront the importance of having a will and powers of attorney in place; nevertheless, we have received many requests over the last few weeks to prepare or update wills and powers of attorney for our clients.
Why Now?
We have highlighted the importance of having an updated and properly drafted will and power of attorney in previous posts – but suffice it to say, now is a great time to put these documents in order, or review whether your existing documents adequately represent your current wishes and family circumstances.
While many may have a will, having Powers of Attorney for Property and for Personal Care are essential as well. While it is our hope that the public health crisis resolves quickly and thoroughly, Powers of Attorney for Property can be helpful for those who are practicing social and physical distancing, quarantining, have had their travels out of country extended, who are ill, who reside in long-term care residences that have been “locked down”, or who are vulnerable or high risk and have chosen to self-isolate. Having a valid Power of Attorney for Property at this time will allow someone that you trust help complete real estate or business transactions, assist you with the payment of your bills, routine banking, or managing your investments in the event you are unable to do so based on the above-noted circumstances.
Powers of Attorney for Personal Care are always important, and are used in the event that you become ill and are unable to make decisions for yourself with respect to your health care and well-being. The COVID-19 outbreak simply highlights that discussions should be had with friends and family with respect to your wishes, and to ensure that you have the proper documentation in place to allow your loved ones to seamlessly advocate on your behalf.
The Complication in times of Social/Physical Distancing
Under the Succession Law Reform Act, there are a number of strict rules that govern the signing of wills in Ontario which must be followed for them to be valid. Two of the most important rules are as follows:
- The client/testator must sign (or acknowledge) their signature in the presence of two witnesses; and
- Both witnesses must sign the will in the presence of the client/testator and each other.
Practically speaking, this means that you need to have all three persons in the same room, at the same time, and close enough to each other that they can see the client/testator sign the will. Traditionally, remote signing or witnessing of wills is not permitted under Ontario law. Electronic signatures are also not permitted.
With today’s requirement to distance from one another, or should someone fall ill or need to self-isolate, this can make the realities of signing a new will difficult.
However, on April 7th, 2020, the Ministry of the Attorney General enacted an Order In Council under s.7.0.2(4) of the Emergency Management and Civil Protection Act with respect to the virtual commissioning and execution of wills. This Order will permit the virtual witnessing for wills and powers of attorney (over video-conference), provided that at least one person acting as witness is a licensee under the Law Society Act (ie: lawyer, or licensed paralegal). This Order applies to wills and powers of attorney moving forward, and will remain in place for the duration of the Declaration of Emergency. Key to this amendment is that the witnessing must take place using audio-visual communication which permits the parties to see, hear, and communicate with each other in real time.
Options Moving Forward
Physically meeting with clients at this time is not advisable, but each case is reviewed on an individual basis.
As of April 7th, 2020, meeting with clients over video-conference technology for the execution of wills and powers of attorney is a viable option. It may not be appropriate in all settings and for all clients, but in these unprecedented times, will provide another option to clients seeking reassurance and to lawyers wanting to ensure documents are properly witnessed.
We typically hesitate to send out wills to be executed by the client without our direct presence. This is out of an abundance of caution that it may not be properly executed and found to be invalid. Given the circumstances, and if videoconferencing is not an option, this is a tool we have at our disposal. We remind our clients that there are strict requirements as to who can act as their two witnesses (or more specifically, who may not act as their witnesses). However, we do recommend that our clients come in to re-sign their wills at a later date just to ensure everything was done properly.
If this is something that has been on your ever-growing to-do list, or if this inspires you to be pro-active, please get in contact with one of the estates lawyers at Rasmussen Starr Ruddy. We have creative solutions which we hope can help instill some confidence and certainty in these uncharted waters.
