To my surprise I have not seen any public criticism of the recent Emergency Order in #Ontario that permits virtual signing of Wills & POAs. The more I think about it, the more concerned I am. So here is a thread of what’s been keeping me up @ night. But first, some context. 1/22
I don’t draft Wills and rarely draft POAs. I see POAs in action (or lack thereof) when there are consent/capacity issues. I have serious concerns about undue influence and capacity and believe we must continue to be mindful of these issues in this new physically distant world.
The new process looks like this: Grantor signs on video-call, delivers signed docs to each witness; witnesses sign on video-conference; 2nd witness may return originals to grantor. So 2-3 Zooms and the document gets sent around 1-3x. Annoying, but not so bad, right? Think again
Issue 1: SOCIOECONOMIC STATUS. The Order appears to assume everyone who will be signing a POA or Will has access to a printer at home. They don’t. Perhaps they were going to travel to their lawyer’s office, or print it at their own office, a relative’s or the library. 4/22
W/o a printer, a workaround is the lawyer sending out originals or client travelling to the lawyer. I have an inkling that owning a printer and affording to courier bulky docs is tied to socioeconomic status. Is there a way to provide access to people w/ lower SES ?5/22
Issue 2: SAFETY / ADVERSE IMPACT ON WOMEN. The emerging protocol requires lawyers to provide their home address to clients because after signing the Will or POA, the client will be mailing or couriering it to the witnesses (one of whom must be a lawyer or paralegal). 6/22
B/c so many lawyers are working from home, many will be required to give out their home address. I am going to go out on a limb and say some (many?) female lawyers are not comfortable revealing this info, and often for good reason. Is there a way to ensure women don’t opt out?
Issue 3: BREAKING QUARANTINE. Let’s say I am comfortable giving my home address to a client and I have them mail me a POA I virtually witnessed. I now have to walk to my mailbox to retrieve the documents. But what if I am on quarantine? 8/22
Should I be walking past my neighbours to go to my mailbox and touching the mailbox? Or if I opt for courier, should I really stand close to someone while I sign to confirm receipt? Is there another way? 9/22
Issue 4: DELAY. If someone signs a Will/POA and then sends it to witnesses, there will be delay. What happens if someone dies before the witness signs? Will this invite or complicate a lawsuit? Is there a way to ensure witnesses can sign on the same day as the grantor? 10/22
Issue 5: SPREADING THE VIRUS. If a grantor has COVID19, might she then send the virus to the witnesses in the mail via the signed documents? And to the postal workers? Is there a way to avoid spreading the virus? 11/22
Issue 6: CONFUSION RE EXPECTATIONS OF WITNESESS. The Emergency Order says 1 of the 2 witnesses must be a paralegal or lawyer. This invites confusion around the expectations of a witness because drafting Wills and POAs is outside the scope of paralegals. 12/22
Is the witness expected to satisfy himself or herself about the grantor’s capacity? Is a paralegal witness expected to draft affidavits of execution? The role of the witness is blurred given the inclusion of paralegals. Guidance is needed. 13/22
Issue 7: DISADVANTAGES PEOPLE WHO CANNOT AFFORD A LAWYER. I think everyone should have a Will & POA drafted by a lawyer, but that is not the world we live in. The Ontario govt provides a free POA for use by the public in an effort to support executing POAs w/o a lawyer. But…
the DIY crowd now needs a lawyer/paralegal for virtual witnessing for the document to be valid & I’m not sure many will be willing to do so. Why? Because insurance likely won’t cover them if they did not draft the document and they are later involved w/ any ensuing litigation
LawPro informed my office that “The mere witnessing of wills which were not prepared by your firm and about which your firm is not providing legal advice would not qualify as the provision of Professional Services, and therefore coverage would not be engaged.” 16/22
Issue 8: CHALLENGES FOR PEOPLE IN CARE FACILITIES. People in LTC, hospitals, hospices or other care facilities may need help to participate in virtual witnessing. This is also true for people at home reliant on home care. Not all older adults are Zoom-savvy. 17/22
They’ll need help from very busy HCPs to follow what is emerging to be the standard protocol. In addition to tech help, they may also need help retrieving and sending mail/couriers. Is there a way we could reduce the # of video-conferences and eliminate need to send mail?
Issue 9: DISADVANTAGES PEOPLE WHO ARE IMMUNOCOMPROMISED. As alluded to above, walking to a mailbox & touching docs others have touched may increase risk of getting #COVID19. Someone who is immunocompromised may decide the risk is not worth it and therefore not execute a Will/POA
I suspect if we asked people with various disabilities (and we should), they may identity other concerns with this process.
Issue 10: ACCESS TO JUSTICE. The POA and Will signing process just became lengthier and more complicated, and thus, more expensive. Not everyone will increase their prices, but it is reasonable some will because executing these documents will now take significantly more time.
A SIMPLE SOLUTION: I strongly suggest the Emergency Order be amended to permit e-signing. For clarity, e-signing can be done during an audio-visual conference with screen-sharing. The witnesses could then e-sign immediately after the grantor, also using screen-sharing.
Everyone can receive a recording of the videoconference and a copy of the signed document. The signatures could be connected to IP addresses and accompanied by the time of signature. All other protocols could remain the same. Thanks for reading. Let me know what you think!
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