Canadian Lawyer

May 2021

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Page 34 of 43 33 has gone a step further, with the govern- ment changing the laws to make electronic witnessing permanent. Still, Tsui says, there are different signing rules for other documents. "There's one rule for a will, one rule for power of attorney [and] one rule for a representation agreement, which is a medical planning document," she says. "I make sure I have the orders for these rules with me all the time, just so I can keep it straight." While these new rules have solved a big part of the challenges of witnessing rules, lawyers still feel they must be vigilant if they are not in the same room as the client. "There is a requirement that lawyers be able to determine the capacity of a person, or whether they are being unduly influenced by someone — that's definitely harder to do when you're doing things online," says Duffy. She adds that, "normally, when you're dealing with a client in person, you can watch their face for clues, get a sense of how the family functions." Even if a relative who is a beneficiary brings the client to the office, Duffy says she makes sure to talk to them in private, something she can't ensure if matters are being taken care of through Zoom calls. There could also be a genuine need to have someone tech-savvy near the client to deal with any troubleshooting that's needed. "Some of my older clients certainly cannot master Zoom on their own," she says. Amelio says that, on a practical basis, he understands that "there may be more people in a room than I'd like" when dealing with a sick or elderly client not adept at computer technology. However, he acknowledges that it makes his job more challenging to deter- mine "undue influence" from someone if he is unsure who is with the client. So, he will often have a separate phone conversation with the client or ask questions to make sure he is comfortable with the situation. Tsui says she follows similar practices, "but, at the end of the day, I'm definitely relying on the client or those with them to do the right things and follow the correct protocols." Another factor that wills, trusts and estate lawyers face is determining someone's capacity to make a will. "I find the requirement that we determine the person's capacity could be a potential challenge if it is being done online," Duffy says, especially if it is a new client that she hasn't met in person before. Duffy tells the story of one of her lawyer colleagues who sent her a video of an online call with a client, wanting her thoughts on his capacity. "He was clearly not well. He was dozing off in between, and he kept looking over to one side on the Zoom call." It is the type of situation, Duffy says, when some specific ques- tions might have to be asked, such as "Who is with you? What are you looking at there?" Tsui relates a similar story about a client with whom she was dealing early on in the pandemic, concerned about his capacity. "Right away, I was quite concerned. So, I put a note in my calendar telling me that as soon as the office reopens for her to come in," she says. "Fortunately, we were able to arrange that because you just can't beat an in-person meeting." "At the end of the day, I'm definitely relying on the client or those with them to do the right things and follow the correct protocols." Ingrid Tsui, Alexander Holburn Beaudin + Lang LLP WILL-WITNESSING RULES: EAST Quebec: During the pandemic, wills and powers of attorney witnessing can involve technology. A lawyer or notary must be present virtually, and witnesses must provide two identification pieces, with one containing a photo. New Brunswick: The Law Society of New Brunswick has published directives for remote execution and witnessing of wills and powers of attorney, which will be permitted until Dec. 31, 2022. Newfoundland and Labrador: The Temporary Alternate Witnessing of Documents Act allows for the signing and witnessing of wills through audio-visual technology until "the date the public emergency ends." Prince Edward Island: No specific regulations are in place, but PEI has been looking at recent moves to allow virtual witnessing of wills and powers of attorney Nova Scotia: No specific legislation allows for remote witnessing, but the Nova Scotia Bar Association says that, as a last resort, videoconferencing can be employed, although capacity and undue influence to duress or influence need to be assessed.

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