Canada: Electronic Witnessing Of BC Estate Planning Documents

The BC Government has declared a state of emergency as a result of the COVID-19 pandemic. During this time, we are encouraged to maintain physical distance from one another. Even when it may be possible to meet and maintain an appropriate distance, many people are reluctant to do so due to legitimate concerns about spreading the virus. However, physical distancing has made it difficult to execute wills, powers of attorney and representation agreements. Estate planning documents generally have strict requirements for how they can be executed, requiring the person making the document to physically appear before one or more witnesses. There are also legal restrictions on who can be a witness, often preventing immediate family members from acting as witnesses.

To address these issues, a number of other provinces, such as Saskatchewan and Ontario, have introduced temporary measures that permit estate planning documents to be signed using video conferencing technology. On May 19, 2020, the BC Government followed suit. Two ministerial orders have been issued under the Emergency Program Act (British Columbia) by the Minister of Public Safety and Solicitor General which permit electronic witnessing of wills, powers of attorney and representation agreements during the provincial state of emergency.

Execution of Wills

Ministerial Order No. M161 makes it possible to use video conferencing to execute wills during the state of emergency. If the will-maker and the witnesses are in each other's "electronic presence" they can execute the will by signing complete and identical copies of the will in counterpart. Electronic presence is when two or more individuals are in different locations but communicate simultaneously using audiovisual communication technology to an extent that is similar to the communication that would occur if they were all physically present in the same location. In other words, if the will-maker and the witnesses are communicating via technology that permits them to hear one another and see one another, they can execute the will under the Order. The Order notes that the individuals can use video conferencing even if some of the individuals are physically present in front of one another. This means that video conferencing can still be used where the witnesses are at the same location and are video conferencing with the will-maker (or where the will-maker is with one of the witnesses).

If the Order is being followed, at least one of the witnesses must be a lawyer or notary public. In addition, the will must include a statement that says it was signed and witnessed in accordance with the Order.

Execution of Enduring Powers of Attorney

An enduring power of attorney is a document where an adult appoints someone as their attorney to deal with their legal and financial affairs and the appointment continues to be effective even if the adult loses capacity. Normally, an enduring power of attorney must be signed by the adult and the attorney(s) in the presence of two witnesses, unless the witness is a lawyer or notary public, in which case only one witness is required.

Ministerial Order No. M162 makes it possible, during the state of emergency, to execute enduring powers of attorney in counterpart using video conference. Similar to the Order for wills, if the adult or attorney(s) and the witnesses are connected via audiovisual communication technology they are considered to be in each other's "electronic presence" and can sign complete and identical copies of the power of attorney in counterpart. If the adult or attorney(s) will be signing the power of attorney using video conferencing, the witness must be a lawyer or notary public. The power of attorney must also include a statement that it was signed and witnessed in accordance with the Order.

The Order only deals with the requirements for executing a power of attorney under the Power of Attorney Act (British Columbia). If the adult wishes to appoint an attorney who can deal with their interests in real estate, the power of attorney must also be executed in accordance with the requirements under Part 5 of the Land Title Act (British Columbia). There are two ways documents can be witnessed under the Land Title Act. The first is if the adult and attorney appear before an officer (a person who can take an affidavit) who acts as witness under sections 42 and 43. The second is if the execution of the power of attorney is not witnessed by an officer in accordance with sections 42 and 43, but the witnesses complete affidavits testifying to the execution of the power of attorney under section 49. The Land Title and Survey Authority of British Columbia has not issued any practice bulletins regarding whether an officer can witness a power of attorney remotely for the purposes of sections 42 and 43 of the Land Title Act. However, the Authority has released Practice Bulletin No. 01-20 which describes the process for how British Columbia lawyers and notary publics can witness affidavits remotely for use in land title applications.  The Practice Bulletin sets out detailed requirements, including how the deponent must show government-issued photo identification, how the parties must initial the pages of the affidavit, and how the completed affidavit can be sent by the deponent to the lawyer or notary.

Execution of Representation Agreements

In a representation agreement, the adult appoints a representative who can make decisions with respect to their health and personal care. Ministerial Order No. M162 also makes it possible for the adult 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 or notary public, which means that only one witness is required, and the representation agreement must include a statement that it was signed and witnessed in accordance with the Order.

Before the person who is being appointed as representative can act, they must also sign the representation agreement. However, the Representation Agreement Act (British Columbia) does not require the representative's signature to be witnessed. This means that the representative can sign the agreement without having to use the video conferencing rules.

The new rules that have been introduced will make it easier to execute estate planning documents during the state of emergency while maintaining physical distance.