Electronic witnessing of Alberta estate planning documents

May 26, 2020 | Jacklynn Pivovar

The declaration of states of emergency resulting from the current COVID-19 pandemic, public health orders and guidelines for self-isolation and social distancing have affected everyone in Alberta and around the world.  As many people are at home contemplating the global effects of COVID-19, their thoughts are also turning to their own estate plan. Physical distancing has made it difficult to execute wills, powers of attorney and personal directives because there may be circumstances where it is not possible or medically safe for someone to physically attend before witnesses to sign their estate planning documents. These documents have strict requirements for how they can be executed, requiring the person making the document to physically appear before one or more witnesses to comply with the rules which govern formal validity. There are legal restrictions on who can be a witness, often preventing immediate family members, their spouses or adult interdependent partners from acting as witnesses.

To address these issues, the Alberta Government has introduced temporary measures, on May 15, 2020, that permit estate planning documents to be signed using video conferencing technology. Alberta has followed a number of other provinces, including British Columbia, Saskatchewan and Ontario. A ministerial order has been issued under the Public Health Act by the Minister of Justice and Solicitor General which permits electronic witnessing of wills, powers of attorney and personal directives during the state of public health emergency due to COVID-19 and the significant likelihood of an influenza pandemic.

Execution of Wills

Ministerial Order No. 39/2020 (the “Order”) makes it possible to use video conferencing to execute wills during the state of emergency. If the will-maker and the witnesses are connected to each other by an electronic method of communication in which they are able to see, hear and communicate with each other in real time they are deemed to be in each other’s presence.  Under the Order they can execute the printed will by signing complete and identical copies of the will in counterpart.

At least one of the witnesses must be a lawyer who is an active member of the Law Society of Alberta and who is providing legal advice and services respecting the making, signing and witnessing of the will.

Execution of Powers of Attorney

An enduring power of attorney (“EPA”) is a document where an adult (the “Donor”) appoints someone (the “Attorney”) to deal with their financial affairs and the document must indicate that it is either to continue, or spring into effect, when the Donor loses his or her mental capacity. An EPA must be signed by the Donor in the presence of one witness, but that witness cannot be the person being named as the Attorney, or the spouse or adult interdependent partner of the Donor or of the person being named as the Attorney.

The Order makes it possible, during the state of emergency, to execute enduring powers of attorney using video conference. Similar to the rules for wills, if the Donor and the witness are connected by an electronic method of communication they are deemed to be in each other’s presence and can sign complete and identical copies of the EPA in counterpart. If the Donor signs an EPA using video conferencing, the witness must be a lawyer who is an active member of the Law Society of Alberta and who is providing legal advice and services respecting the making, signing and witnessing of the EPA.

Execution of Personal Directives

In a personal directive, the adult (“Maker”) appoints an agent who can make decisions with respect to their health and personal care should the Maker lose his or her mental capacity. The Order also makes it possible for the Maker to sign and have their signature witnessed if linked by video conference with a witness. If video conference technology is used, the witness must be a lawyer, who is an active member of the Law Society of Alberta and who is providing legal advice and services respecting the making, signing and witnessing of the personal directive.

It is important to seek legal advice of a lawyer who practices in this area when putting together an estate plan who can guide you through the process of executing estate planning documents during the state of public health emergency while maintaining physical distance.

 

Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.

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