In a matter of weeks, the COVID-19 outbreak has changed the world in completely unprecedented ways. The vast majority of us are staying home and practicing social distancing and self-isolation to do our part in flattening the curve of infection.
Estate planning and administration have been impacted as well. It is important that lawyers and clients alike take note of certain adjustments that should be taken and issues in this area of law that have since emerged.
Are your documents up-to-date and ready to be used?
Now more than ever, it is imperative to ensure that your estate planning documents are up-to-date. If you do not have a will, you should use this time at home as an opportunity to perform an assessment of your assets, debts and intentions so you can ensure that the people you care for are taken care of.
It is perhaps even more important to have up-to-date powers of attorney for property and personal care in place, especially if you are part of the high risk demographic vulnerable to adverse outcomes from being infected with COVID-19, such as being over age 60, immunocompromised, or having pre-existing conditions such as heart disease, diabetes, or lung disease.
A power of attorney for property allows the individual you appoint as your attorney to manage and administer your finances and personal property when you cannot do so yourself. If you are part of a high risk group, or are in self-isolation or quarantine, it may become near impossible to manage your day-to-day finances and banking if you are not used to using internet banking or other remote means to manage your finances. Appointing a trusted person who is not in this high risk group as your attorney for property would be an ideal solution.
For those who have existing powers of attorney for property in place, it may be worthwhile to review the document to see whether they are effective immediately or come into effect only upon your incapacity. If the power of attorney does not come into effect until your incapacity and you are currently capable, then you may have to see how it can be "activated" to enable your attorney to start acting on your behalf or if a new, immediately effective document is required.
A power of attorney for personal care allows the person you appoint as your attorney to make decisions with respect to your healthcare, nutrition, shelter, clothing, hygiene and safety, in the event that you are incapable of doing so yourself. All of these issues are highly relevant during this time. If you do not have a power of attorney for personal care, you should assess who you can appoint to fill this role. You should also consider your end-of-life wishes, if any, and ensure that your attorney is aware of them.
Executing Wills and Powers of Attorney Remotely
In Ontario, there are strict requirements pertaining to the execution of original estate planning documents.
Wills must be signed by a testator in the physical presence of two witnesses who are not beneficiaries of the will.
Powers of attorney must be signed by the grantor in the physical presence of the two witnesses who cannot be the attorneys appointed, the spouse or partner of the attorney appointed, the spouse, partner or child of the grantor or someone the grantor treats as a child, a person who is under guardianship or who has a guardian of the person, or a person who is under 18 years of age. If these strict requirements are not followed, the will or power of attorney may be invalid. In addition, one of the witnesses to a will must swear an affidavit of execution in the presence of a commissioner of oaths. This document forms part of the probate application to the court and should therefore be done right after the signing.
Since an in-person meeting to execute wills, powers of attorney, and affidavits of execution, during COVID-19 may not be possible, lawyers and clients should note that some adjustments to the signing process must be made to ensure that documents are executed properly. Some creativity and the use of technologies such as Skype, FaceTime or Zoom, may be needed!
Duties of Fiduciaries in Financial Downturn
Fiduciaries such as executors, trustees and attorneys for property should be reminded that they have a duty to manage the assets of the person or beneficiary in their best interest. This is especially the case in the midst of a financial downturn. Fiduciaries should therefore carefully monitor the assets, investments and other property of the beneficiary or person as the markets continue to fluctuate.
It may also be prudent for fiduciaries to consult the beneficiary's investment advisors during this time to assess current risk categories and canvass the options available. This is important to ensure that the beneficiary's assets are not depleted as a result of the neglect or ignorance of the fiduciary.
Clients and lawyers should take note that Ontario civil courts, including the estates list, will be suspending regular operations as of Tuesday, March 17, 2020. Court buildings are closed in effort to prevent many people from gathering close together.
Until further notice, the court will be hearing only urgent and time-sensitive motions and applications where "immediate and significant repercussions may result if there is no judicial hearing". The hearing may be conducted in writing, by teleconference, by videoconference, and only in rare circumstances, in person.
These are challenging times. If we can assist in any way, please call us, we may be remote, but we are here!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.