Many of us take it for granted that we can meet with our lawyer in person to discuss and sign our estate planning documents which often include a will, power of attorney and representation agreement. One of the reasons that it is important to consult with a lawyer is that there are strict requirements in terms of how to prepare and sign estate planning documents that differ from province to province. These requirements are there to protect people as these documents reflect very important life decisions and should not be taken lightly.
Due to Covid-19, the BC Government announced a state of emergency on March 18, 2020. The duration of the state of emergency has been extended a number of times already and currently runs until June 9, 2020.
In the current climate with COVID-19 and the state of emergency, meeting with a lawyer to sign estate planning documents can be challenging for many reasons. Some individuals are ill or required to self-isolate. Others are trying to maintain distance and stay away from anyone unless absolutely necessary. Still others cannot get in to see their lawyer as law firms are shut down or operating with limited capacity.
Other provinces such as Ontario and Saskatchewan began taking steps to permit people to sign their estate planning documents without having to meet their lawyer in person. As of May 19, 2020, the BC Government followed suit with two ministerial orders.
Wills
Ministerial Order No. M161 (“M161”) permits individuals to sign their will while connected by videoconference with two witnesses. If signing under M161, at least one of the witnesses must be a lawyer or notary public. It is possible that two of the three people be in the same location while the third one is connected via videoconference. This permits a lawyer to be in an office with a second witness and for the two of them to connect via videoconference to the lawyer’s client who is the will maker. The will must include a statement that says it was signed and witnessed in accordance with M161.
Powers of Attorney
Ministerial Order No. M162 (“M162”) deals with two different documents. The first is powers of attorney. A power of attorney is a document where an individual appoints someone to make their legal and financial decisions. M162 allows individuals to sign their power of attorney by videoconference with their witness. If signing a power of attorney pursuant to M162, the witness must be a lawyer or notary public and the power of attorney must include a statement that it was signed and witnessed in accordance with M162.
Before the person appointed under the power of attorney (the “attorney”) can act, he or she must also sign the power of attorney. If not able to meet in person with a lawyer or notary, the attorney may also follow the same process regarding using videoconference technology to connect with a lawyer or notary public.
What M162 does not address is that in order for a power of attorney to be used to deal with real estate, it must also be signed in accordance with the requirements set out in the Land Title Act. That adds another layer of complexity. Dealing with real estate is a common use under a power of attorney and absent a power of attorney, it can get very complicated and expensive to transfer real estate if one of the owners no longer has mental capacity to sign transfer documents. Given the requirements under the Land Title Act, in order for a power of attorney to be effective to transfer real estate, an additional affidavit must be prepared and signed that meets the requirements set out in section 49 of the Land Title Act. The process required to sign affidavits remotely for use in land title applications is set out in the Land Title and Survey Authority’s Practice Bulleting No. 01-20.
Representation Agreements
The second document that is covered by M162 is representation agreements. A representation agreement is a document where an individual appoints someone to make their personal and health care decisions. M162 allows individuals to sign their representation agreement by videoconference with their witness. If signing a representation agreement pursuant to M162, the witness must be a lawyer or notary public and the representation agreement must include a statement that it was signed and witnessed in accordance with M162.
Before the person appointed under the representation agreement (the “representative”) may act, he or she must sign the representation agreement, but that signature does not need to be witnessed so there is no need to worry about the videoconference rules for the representative.
While the accommodation that the BC Government has made for remote witnessing of wills, powers of attorney and representation agreements is helpful, the signing requirements remain onerous. To ensure that you are compliant, we urge you to consult with your lawyer before making any changes to your estate planning documents. Please also note that the two ministerial orders discussed in this article only remain in force until the state of emergency in BC expired or is cancelled.
We at Pushor Mitchell remain open and available to assist our clients with all of their legal needs, including estate planning. Please reach out if you would like to discuss your estate plan.
Paul Tonita is a solicitor practicing in the areas of business law, real estate, estate planning and estate administration. His business experience includes assisting clients right from the beginning by discussing the different business structures, incorporating, buying and selling businesses, assisting with lending or financing needs, drafting and advising on contracts, and providing general advice to business owners.
His real estate practice involves assisting both residential and commercial clients with purchases, sales, financing and leasing.
Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.
For more information please contact Paul Tonita at 250-869-1126 (direct line) or email him at [email protected].
