On April 7, 2020, in response to the COVID-19 pandemic and resulting social distancing measures, the Ontario Government made an emergency order temporarily allowing Wills and Powers of Attorney to be signed and witnessed by way of “audio-visual communication technology”. The Order, made under s.7.0.2(4) of the Emergency Management and Civil Protection Act, provides temporary relief for the “duration of the emergency” (there is no specific end date). The Order does not amend the laws themselves that govern the execution of Wills (the Succession Law Reform Act) and Powers of Attorney (the Substitute Decisions Act). What this means is that after the emergency is over, everything will return to status quo; Wills and Powers of Attorney will need be signed in the physical presence of two qualifying witnesses.
The Order defines “audio-visual communication technology” as “any electronic method of communication in which participants are able to see, hear and communicate with each other in real time.” This can be accomplished by virtual meeting platforms like Zoom, Microsoft Teams, GoToMeeting, Skype and FaceTime.
A further requirement for virtual signing, is that one of the witnesses be an Ontario licensed lawyer or paralegal. This is not usually required (although it is good practice). However, the normal rules which prohibit certain categories of individuals from acting as a witness continue to apply. For Wills, this list of prohibited witnesses includes anyone under the age of 18 and a beneficiary or the spouse/partner of a beneficiary. For Powers of Attorney, this includes anyone under the age of 18, the named attorney, the spouse/partner of the named attorney, the grantor’s child, or any person whose property is under guardianship or has a guardian of the person acting.
Unfortunately, the Order does not allow for counterparts signatures, a method of signing legal documents whereby each party signs a separate but identical copy of the same document, and together, the signed copies form a single binding document. Further, the Order does not allow for digital signatures. The original Will and Powers of Attorney must be physically signed (so called “wet” signatures) by each of the parties.
So how exactly do we accomplish virtual signings? With multiple (at least 2, but maybe 3) virtual meetings and couriering signed documents from one party to the next (and maybe the next). Cumbersome? Definitely. A perfect answer? No. The best option we’ve got for those of us who are practicing strict social distancing? Yes. However, other options are still available, including open air signings with the recommended precautions in place.
Interested in making a Will and Powers of Attorney? Give me a call to discuss which signing option makes sense for you.
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