It is not surprising that the current COVID-19 crisis has led many people to feel an urgent need to put wills and powers of attorney in place or to update existing documents. This is a process that generally takes some time as it involves client identification, a review of the nature and extent of a client’s assets and liabilities, the client’s family and business circumstances and other relevant matters. The input of the client’s accountant or financial advisor is often required. Another critical point is that the lawyer must be satisfied with the client’s mental capacity to put a will and powers of attorney in place and further, that the client is not being unduly influenced by anyone. Finally, there are strict requirements that must be adhered to in the signing and witnessing of these documents for them to be valid, including the presence of 2 persons who can act as witnesses.
Nevertheless, there may be some options for putting wills (or changes to them) and powers of attorney in place in emergency situations where they are urgently required, such as may be the case during these challenging times. Meetings by phone or video to review matters and take instructions may be arranged if it is not safe to meet in person. This may be easier where there is a pre-existing lawyer/client relationship. Assuming the lawyer is satisfied with client identification and mental capacity, documents can be prepared, reviewed, amended as necessary and finalized for signing. If it is unsafe to meet with clients or there are restrictions in place preventing such meetings, arrangements can be made to forward documents to the client.
However, the requirement for having 2 witnesses present when the documents are signed must be complied with. It should be noted that certain people are prevented from acting as witnesses – examples are beneficiaries under a will or attorneys appointed pursuant to a power of attorney (as well as other excluded persons). Another potential option in emergency situations, is the possibility of preparing a holograph will or codicil (a codicil modifies an existing will). These documents must be written by hand by the testator (the person whose will or codicil it is) and dated but no witnesses are required. Unfortunately, there is no equivalent for powers of attorney which must have 2 witnesses. There has been some talk of possible changes that will temporarily allow wills and powers of attorney to be witnessed virtually but this has not happened as of the writing of this article.
The foregoing is a general overview and is not legal advice.