The COVID-19 pandemic is continuing to change our daily lives in numerous ways and shall continue to do so for the foreseeable future. Planning for that future, both for yourself and your cherished loved ones, has become even more essential now that there are continuing uncertainties about the economy, individual employment, your business.
Preparing a Will and Power of Attorney document is one key method for planning ahead.
However, the pandemic has impacted even this relatively simple task, since government-imposed restrictions and social distancing mandates can serve as hurdles for getting the job done. Here are some of the key points to know, as we navigate our way through these unprecedented times. Why It’s Important to Have These Documents in the First Place Studies and surveys indicate that approximately 40 percent of Canadian adults do not have a Will or Power of Attorney. This is a surprising figure. Especially in connection with Wills, because for most people having a valid, comprehensive Will created is a painless but important undertaking and prudent action.
I believe that percentage would drop significantly if people truly understood the significant consequences of dying without one.
Consider what would happen if you have died without a Will (also called dying “Intestate”);
Initially, your Estate assets will be frozen until the Court appoints an Administrator, which may cause financial hardship for your family during this period of time. Eventually the Estate will be distributed according to provincial intestacy laws. These laws vary by Province, but typically provide a set dollar amount to a surviving spouse, with the balance divided equally among the spouse and each child. (This occurs in the situation of a married spouse and biological or legally adopted children). A common law spouse or stepchildren may not even be recognized under intestacy laws in Ontario. If you have no surviving spouse or children, the assets would go to your next-of-kin in the order provided for by the legislation. In these scenarios, the administrator would have very little discretion in distributing your assets. Also, many opportunities to reduce tax – both before and after death – would be reduced or eliminated without a Will and related Estate planning. In the case of minor children or dependants, any preference you have concerning the party to be named as Guardian may not be recognized. Payments to minor children would be held in trust by the courts, but only until they reached the age of majority. At this point, they would have a legal right to the money and the right to spend it as they wish – a thought many parents find disconcerting to say the least!
How the COVID-19 Pandemic Changes Things We’ve established that it’s a good idea to have a Will and Power of Attorney.
But if you don’t, this might seem like a particularly challenging time to arrange for them, given the declared State of Emergency, government-imposed directives around self-isolation and quarantine, and social distancing mandates. As you may already be aware, one of the key requirements for making your Will or Power of Attorney valid is that you must sign it in front of a witness, The good news is I am still able to assist you with drafting and executing these documents “virtually,” through the use of technology such as teleconferencing applications (such as Zoom, Facetime or Skype). Under a series of emergency Orders in Council, the law of Ontario has been temporarily changed to allow Wills and Powers of Attorney to be signed and witnessed using these electronic means in some circumstances. These changes are currently only in effect only for the duration of the COVID-19 emergency. Provided that you and your witness(es) are able to see, hear and communicate with each other in real time, your signature on a Will or Power of Attorney can usually be “witnessed” (i.e. acknowledged) by means of this kind of audio-visual communication technology. During this period one of the witnesses must be the lawyer who prepared the Will; whereas, in normal times while I always prefer to act as a witness, this is not a legal requirement. For Wills, you may sign the paper copy that is in front of you on one end of the video call, and your witness may sign a separate, complete, identical copy of the Will on the other end. Together, the two documents will constitute your valid Will. The same rules apply to donors and witnesses to Powers of Attorney for Property, as well as Powers of Attorney for Personal Care. All other requirements around witnessing documents remain in place, and continue to apply despite the challenges brought about by the pandemic. Note that even with these temporary adjustments to the former process, there are still scenarios where it will not be appropriate to execute a Will or Power of Attorney by virtual means, for example if there is not suitable access to the needed technology, or where there are concerns about duress, coercion or undue influence. Conclusion
Even with the current crisis, there is no excuse for not having a valid Will and Power of Attorney. Estate planning is, and will always remain, an important task regardless of the current crisis, and irrespective of your age, stage of life, and financial means. If anything, the added health concerns triggered by the COVID-19 situation (especially for the senior population) emphasize that you should turn your mind to this topic as soon as possible. I would be happy to discuss with you preparing a Will and/or Power of Attorney (or to review and update an existing one) in order to help make life a little simpler for those individuals you leave behind.
Please call our office to arrange for an in-personal or “virtual” appointment.