Electronic witnessing and signing of estate planning documents in British Columbia

July 6, 2022 | Stephen Hsia, Jillana Schmidt-Kim

Much has changed since May 19, 2020. That is when British Columbia first allowed the remote witnessing of wills, enduring powers of attorney (EPAs), and representation agreements (RAs) to accommodate those isolating because of COVID-19 and the resulting restrictions on in-person gatherings.

While COVID-19 continues to exist, the pandemic-related provincial state of emergency in BC has been lifted, and so have restrictions on public gatherings.

There have also been big legal changes. On December 1, 2021, British Columbia became the first province outside of Quebec to allow for electronic wills, which are wills that can be made, signed, witnessed, and stored completely digitally.

With these changes, we are often asked: is it possible to sign EPAs and RAs electronically, as is the case with electronic wills? Alternatively, is it possible to still witness an EPA or RA electronically?

Electronic signing of EPAs and RAs is not permitted

Although British Columbia now allows and recognizes electronic wills, the Province has not extended the same treatment of EPAs or RAs.

EPAs and RAs must still be signed with wet ink and exist in a physical form.

Electronic witnessing of EPAs and RAs is still permitted

While it is not possible to have or make an “electronic” EPA or RA in BC, British Columbians can still sign EPAs and RAs with their witnesses being electronically present (but not physically present), provided that they follow the rules in Emergency Order M162/2020 (the “Order”).

First issued on May 19, 2020, the Order allows British Columbians to execute EPAs and RAs in counterpart using videoconferencing.

For EPAs, the adult or the attorney and their witnesses must be connected through “audiovisual communication technology” and they must sign complete and identical copies of the EPA in counterpart. If the adult or attorney(s) will be signing the EPA using videoconferencing, the witness must be a lawyer or notary public. The EPA must also include a statement that it was signed and witnessed in accordance with the Order.

The rules are generally the same for RAs, except the representative(s) named in an RA does not need to sign in front of a witness.

The Order contained a sunset clause that stated the Order would cease to be of force and effect when the “last extension of the declaration of a state of emergency” expires or is cancelled.

The last extension of the provincial declaration of a state of emergency ended on June 30, 2021. However, through a couple of regulations (B.C. Reg. 229/2021 and B.C. Reg. 337/2021) made pursuant to s. 3(6) of the COVID-19 Related Measures Act, S.B.C. 2020, c. 8, the Lieutenant Governor in Council extended the shelf life of the Order.

The Order is now set to expire at the same date when the COVID-19 Related Measures Act (the “Act”) expires, being December 31, 2022, unless the Lieutenant Governor in Council repeals the Act on an earlier date.

Closing comments

It remains to be seen whether the BC Government will permit or recognize “electronic” EPAs or RAs in the near future or, at the very least, amend the Power of Attorney Act, R.S.B.C. 1996, c. 370 and the Representation Agreement Act, R.S.B.C. 1996, c. 405 to codify the electronic witnessing of EPAs and RAs before the expiration of the Order at the end of the year.

Until then, British Columbians seeking to sign the “trio” of basic estate planning documents (being a will, an EPA, and an RA) at the same time will face an inconsistent set of requirements for executing them.

While the will can be signed and witnessed completely electronically with laypersons acting as witnesses, the EPA and the RA will need to be printed, signed, and witnessed with wet ink, and, if the EPA or RA is being witnessed electronically, the subscribing witness must also be a lawyer or a notary. The electronically-witnessed EPA or RA must refer to the Order, and, moreover, if land is involved, the witnessing lawyer must also comply with additional requirements specified in the Land Title Act and by the Land Title Office and Survey Authority of British Columbia.

Electronic signing and witnessing were intended to make the estate planning process more accessible to everyday British Columbians and more responsive to the post-COVID-19 environment. However, with different requirements for electronically-witnessed wills, EPAs, and RAs in place (for now) and with physical distancing measures no longer in place, British Columbians might, ironically, find it both more efficient and safer to have all three documents signed and witnessed in the “traditional” way: physically, in front of a BC lawyer.

If you have questions about electronic signing and witnessing of estate planning documents, please reach out to a member of Miller Thomson’s Private Client team.

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