6 minute read
ELECTRONIC DOCUMENTS
ELECTRONIC WILLS, ENDURING POWERS OF ATTORNEY, AND REPRESENTATION AGREEMENTS New Rules and Practice Tips
Sara Pon
Introduction
COVID-19 has changed the way many professionals are working, including Notaries and lawyers.
With people staying home to reduce transmission, that has posed challenges for creating or updating Wills, Enduring Powers of Attorney (EPOAs), and Representation Agreements (RAs). It is important for people to be able to create Personal Planning documents to deal with potential incapacity or hospitalization. To help with that, the BC government passed ministerial orders and amended legislation to allow remote signing and witnessing of those documents. The legislation also allows for purely electronic Wills (e-Wills). E-Wills and Remote Signing of Wills On March 18, 2020, a ministerial order allowed for remote signing and witnessing of paper Wills. In July 2020, the BC government amended the Wills, Estates and Succession Act (WESA) to make the remote signing and witnessing of Wills permanent and allow the creation of e-Wills.
“The WESA e-Will amendments are based on uniform e-Will legislation developed by the Uniform Law Conference of Canada (ULCC), although they were enacted in BC slightly before the ULCC issued its own final version. Since those changes have been made to WESA, they will continue after the pandemic is over. The e-Will amendments to WESA were not yet in force at the date this article was written.”
The amendments to WESA allow for e-Wills to be created. For e-Wills, there is no physical original copy of the Will and there can be many identical electronic copies that are all valid. The amendments specify how e-Wills can be changed or revoked. To change an e-Will, a new Will must be created. To revoke an e-Will, the Will-maker can • create a new Will; • make a written statement (electronic or paper) that the
Will-maker is revoking the Will, signed by two witnesses; • delete one or more electronic copies with the intention of revoking it; • destroy a paper copy of the Will in front of witnesses with the intention of revoking it; or • do some act that the Court determines under section 58 of WESA to have been done with the intention of revoking it, and the consequence of the act is apparent.
The amendments to WESA also allow for both paper and electronic Wills to be signed and witnessed remotely using video technology. For remote signing and witnessing, the Will-maker and the two witnesses must be in each other’s “electronic presence.” That means
• the parties must be able to see and hear each other; • the parties must be able to communicate simultaneously; • the technology must be of good enough quality that they can have a normal simultaneous conversation;
• the video technology can be a form of assistive technology for people who have hearing or vision impairments; and • some of the parties can be physically in the same location and others can be present through electronic means.
To remotely sign and witness a paper Will, the witnesses would sign identical counterpart copies and observe the Will-maker’s signature. For e-Wills, the signature and witnessing can be done through e-signature programs as long as the signature happens in real time and the parties can communicate in real time. Remote Signing of EPOAs and RAs On May 19, 2020, the BC government created Ministerial Order M162 that allows remote signing and witnessing of EPOAs and RAs. That Order, under the COVID-19 Related Measures Act, is in effect until 90 days have passed since BC’s COVID-19 state of emergency has ended.
For EPOAs, the document can be signed by the drafter and the witnesses remotely using video conferencing technology. The Order sets out the following requirements for remote signing and witnessing, • the EPOA must contain a statement that it was signed and witnessed according to Order M162; • the donor and witnesses must sign the EPOA in the electronic presence of each other; • the attorney and witnesses must sign the EPOA in the electronic presence of each other; • the witness for the signature of the donor and the attorney must be a lawyer or Notary; • some of the parties can be physically in the same location and others can be present through electronic means; and • parties can sign identical counterpart copies.
For RAs, the document can be signed by the maker of the RA and witnesses remotely using video technology. The Order sets out the following requirements for remote signing and witnessing, • the RA must contain a statement that it was signed and witnessed according to Order M162; • the maker of the RA and witness must sign the RA in the electronic presence of each other; • the witness must be a Notary or lawyer; • the maker of the RA and witnesses can be physically in the same location or present through electronic means; and • parties can sign identical counterpart copies. Remote Client Work Tips Notaries might be concerned that working with clients through video-conferencing technology or other remote means may increase risks, including undue influence. For more information on undue influence, see CCEL’s blog postdated October 9, 2020. The Law Society of BC, BC Notaries, and the CLEBC have some tips for Notaries and lawyers who are working with clients remotely. Prior to the Meeting • obtain a clear copy of the client’s identification; • obtain any relevant information and documents from the client; • consider if the remote technology will provide an effective meeting for your client, considering the complexity of the legal issue, the needs of the client, the capacity of the client, and any accessibility needs; • consider the security of your video-conferencing software; • confirm in applicable legislation and rules that assessing capacity through remote technology is allowed; and • advise your client not to share the meeting link and to use a secure Wi-Fi network. During the Meeting • lock the meeting once everyone is present; • obtain your client’s consent for using video-conferencing; • ask the client if anyone is else present; • ask the client to move the camera around to confirm who is present in the room; • get all persons in the room to identify themselves; • ensure the audio and video are stable; • give plenty of time for the client to ask questions; • use screen sharing to go through documents and ensure your client understands;
• be aware that assessing a client’s capacity will be more difficult when using remote technology; • assess for undue influence, but that should be part of assessing for undue influence through earlier stages of client interaction; and • be aware that it will be harder to assess capacity or undue influence if you have never met that client in person before. After the Meeting, • keep detailed records of the meeting; • give your client a copy of any documents you executed; • consider sending a written summary of what was discussed; and • consider if any follow-up meetings are needed during or after COVID-19. s Sara Pon is Legal Research Assistant at the Canadian Centre for Elder Law. Sources • The Law Society of British
Columbia, “COVID-19 response,” “Risks and tips when using video-conferencing technology,” and “Video conferencing technology information” (website) • BC Notaries, “Zoom 101” (blog) • Richard Weiland, “Paper 1.1: Wills Formalities and the
Fallout from COVID-19” in The
Continuing Legal Education
Society of British Columbia,
Estate Planning Update 2020 (November 2020)
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