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LSO COVID-19 Response

FAQs: Practice Management

Lawyers and paralegals have been asking the questions set out below, which are grouped by the following topics.

Licensee Supports

Practice Interruptions

  • What should lawyers or paralegals do to plan for ongoing practice interruptions associated with COVID-19?
    Lawyers and paralegals should have disaster or business continuity plans in place for their workplaces. In light of COVID-19, these plans should address situations involving a serious infectious disease outbreak, including a pandemic or a severe seasonal outbreak that results from a virus or other agent (“pandemic plan”).  Lawyers and paralegals should ensure that their pandemic plans meet their specific business and operational needs, and comply with legislative and regulatory requirements, restrictions, and public health recommendations. For more information, see the Office Management section of this FAQ.

    If lawyers or paralegals do not have such plans in place, or existing plans do not adequately address the concerns raised by the COVID-19 pandemic, they should consider reviewing the below resources and following the recommended planning steps identified therein [See disclaimer.]:
    Last updated: March 30, 2021
  • What specific practice management considerations should lawyers or paralegals keep in mind when preparing or updating a pandemic or business continuity plan?

    Lawyers and paralegals should be mindful of the following practice management considerations when dealing with practice interruptions relating to the COVID-19 pandemic:

    Keeping Abreast of Legislative Changes
    In response to COVID-19, the federal and provincial government have introduced and adopted legislative and other measures to protect Canadians, both individuals and businesses, during the pandemic.  Lawyers and paralegals should consider monitoring the following sites for up to date information on these measures and how they impact their practice:


    Understanding Required Practice Adjustments for Working Remotely
    Lawyers or paralegals who work remotely from home or another location, as part of their pandemic or business continuity plans, should consider whether all the key information they require is readily accessible and current. This includes client contact information, client files, staff and service provider contact information, bank account information, and passwords for personal and staff voicemail, computers and emails.

    Lawyers and paralegals should also consider how they will:

    • keep client information confidential from family members or others
    • communicate with clients
    • secure and receive deliveries to their offices
    • continue to delegate to, and appropriately supervise, non-licensees and other staff.


    If non-licensee or other staff are also working remotely, lawyers and paralegals must ensure that the non-licensee or other staff are able to maintain confidentiality in doing so.

    For more information, see the question “How can I ensure that client confidentiality is protected when working remotely?” below.

    Ensuring Awareness of Entitlements Relating to Illness or Absence of Staff
    Lawyer and paralegal employers should ensure they are aware of the changes introduced by the federal and provincial government to assist employers and employees in mitigating the financial impact of COVID-19. This includes, for example, the introduction of a new type of unpaid, job protected leave relating to COVID-19. For more information, see the question “Are employees entitled to take a leave relating to COVID-19?” below.

    Lawyers and paralegals should also consider what specific tasks are impacted if staff are unable to attend the office and ensure that coverage is provided so that clients are not prejudiced.

    In the event that lawyers or paralegals are themselves unable to continue to manage their practice due to illness, they should have a Continuing Power of Attorney for Property including Law Practice or Paralegal Practice in place. See the Law Society’s Contingency Planning Guide (for Lawyers) (for Paralegals) for more information.

    Maintaining Ongoing Communication
    If lawyers or paralegals are changing their business hours, if alternative means of communication will be used or there will be delays to communication, or if other changes to firm operations are anticipated, lawyers and paralegals should communicate this information to clients and staff as soon as practicable. Lawyers and paralegals may consider using email updates, notices on their websites, or other means, as appropriate, based on the needs of their clients and staff.

    Last updated: March 30, 2021
  • What should I do if I have to wind-up my practice temporarily or permanently?
    If you intend to temporarily or permanently wind-up your practice, or if you have questions about the procedures and requirements to wind-up your  practice and/or to close your trust account, please contact Trustee Services, by phone (416-947-3366, toll-free 1-800-668-7380 ext. 3366) or by email (trustee_services@lso.ca). While the Law Society is currently in a work at home arrangement, Trustee Services can provide information and assistance by email or telephone.  

    Last reviewed: March 30, 2021

Office Management

Confidentiality

  • How can I ensure that client confidentiality is protected when working remotely?

    Licensees working remotely should take measures to manage or minimize the risks that remote work environments can pose to client confidentiality. These risks include:

    • increased vulnerability to cyber attacks or data breaches;
    • sharing confidential information across unsecure platforms;
    • technical work disruptions; and
    • offices that are shared with or accessible by others.


    Licensees are strongly encouraged to review and, if needed, adjust current workplace policies and procedures to adequately address and mitigate these risks. In developing these remote work practices, licensees should consider:

    • Whether licensees or their employees require training on cybersecurity best practices and procedures to better understand, identify, and avoid cybercrime dangers.
    • Whether remote work devices, networks, and software have the latest security updates to protect and maintain client confidentiality.  
    • How to advise clients of changes in communication practices, including identifying the risks and measures taken to safeguard their confidential information.
    • Whether to restrict the use of personal devices or equipment and personal email or online accounts for work-related matters. 
    • How to protect confidentiality when using online communication platforms or cloud storage services.  
    • How and under what conditions client property can be removed from the office.
    • How client property should be used, secured, stored, managed, and returned.
    • How to prevent the accidental loss or inadvertent disclosure of confidential information.


    For additional guidance and practical steps for complying with your professional obligations in a remote work environment, including the duty of confidentiality, licensees should contact the Practice Management Helpline.

    In addition to the duty of confidentiality, licensees should be aware of their legal obligations under the Personal Information Protection and Electronic Documents Act (“PIPEDA”) regarding the collection, use, and disclosure of personal information. For more information, licensees may wish to consult PIPEDA and the Office of the Privacy Commissioner’s Privacy handbook for lawyers


    Last updated: March 03, 2021

  • Do my confidentiality obligations prevent office support staff from performing their work remotely?

    No, but as a licensee you are required to assume complete professional responsibility for your practice, which includes ensuring that you and your employees (whether licensee or non-licensee; full-time, part-time, or temporary) abide by the Law Society’s rules of conduct and by-laws. This duty includes ensuring you and your employees understand the obligation to protect confidential client information from unauthorized access or disclosure and know what steps to take to safeguard client documents against loss, damage, or misuse. The obligation to maintain client confidentiality applies whether you or your employees are working physically in the office or from a remote location. 

    Remote work environments can present unique challenges for licensees in meeting their practice management and professional responsibilities. To manage these challenges, licensees should implement strategies to protect client confidentiality while working remotely. For more information see the question How can I ensure that client confidentiality is protected when working remotely?" above. 

    Last updated: March 03, 2021

Cybersecurity

  • Is there increased cybersecurity risk during COVID-19?

    Yes, there is. Licensees and their staff are strongly encouraged to exercise vigilance and take precautions during COVID-19.

    Cyber threat actors often seek to exploit individuals and organizations during periods of rapid change, stress, or confusion. These actors threaten the privacy, financial security, and safety of individuals and organizations through the theft of personal and proprietary information. Licensees may wish to consult the Government of Canada’s National Cyber Threat Assessment 2020 Report for information on the most significant cyber threats facing Canadians and Canadian organizations.   

    For a list of considerations to help licensees safeguard personal and confidential client information against unlawful or unauthorized access, disclosure, or theft see the question How can I ensure that client confidentiality is protected when working remotely?” above.

    Licensees may also wish to review the following resources:


    [See disclaimer.]


    Last updated: March 12, 2021

Virtual Meetings

  • How can lawyers and paralegals communicate effectively with clients while using physical distancing?

    To help reduce the transmission of COVID-19, the Ontario government continues to strongly advise all individuals to maintain physical distancing when meeting with persons outside of their households.  In light of this recommendation, lawyers and paralegals should consider conducting routine meetings with clients by phone or using video-conferencing options such as Zoom, Skype, Facetime or other platforms.

    It is also important for lawyers and paralegals to be aware of the types of engagements with clients that in typical circumstances would require an in-person meeting and that in the context of COVID-19 require a heightened risk-based approach if an in-person meeting is not going to be conducted.

    Lawyers and paralegals should be mindful of their obligations to communicate effectively with clients when selecting an alternative means of communication:

    • Commentary [8.1] to Rule 3.1-2 of the Rules of Professional Conduct (“Rules”) provides that what is effective communication with the client will vary depending on the nature of the retainer, the needs and sophistication of the client, and the need for the client to make fully informed decisions and provide instructions.
    • Rule 3.01(4)(e) and (f) of the Paralegal Rules of Conduct (“Paralegal Rules”) defines competence as including communicating with the client at all relevant stages of a matter and answering reasonable client requests in a timely and effective manner.
    • Guidelines 10, 10.1, and 10.3 of the Paralegal Professional Conduct Guidelines state that a paralegal can provide more effective client service by keeping the client informed regarding his or her matter, and being clear about what the client expects, both at the beginning of the retainer and throughout the retainer.
    • Section 3.3 of the Rules and Rule 3.03 of the Paralegal Rules require that lawyers and paralegals protect the confidential information of their clients when meeting with them virtually or in person. 

    In the context of COVID-19, if lawyers and paralegals choose to change their means of client communication, they should consider notifying clients about the alternative means of communication that they intend to use as soon as practicable. For more information about best practices in using alternative means of communication, please see the questions and answers below.

    Last updated: March 30, 2021
  • Can a lawyer or paralegal use virtual or remote means of assessing a client’s capacity such as video conferencing or telephone?
    The legal requirement(s) for assessing a person’s capacity to make a decision are not regulated by the Law Society and vary based on the task or decision at hand.

    Lawyers and paralegals should continue to consult the relevant legislation and case law that govern capacity and consider whether or not they have the ability to adequately assess a person’s capacity through remote means, such as on video conferencing or telephone. Applicable legislation includes the Substitute Decisions Act, the Rules of Civil Procedure, and/or other legislation and regulations, depending on the context of the matter.

    In using video conferencing or telephone as the exclusive means of communicating with a client, lawyers and paralegals should also assess whether there is a risk that the client may be subject to undue influence or duress.

    Last updated: March 30, 2021
  • Are lawyers and paralegals permitted to record meetings with clients conducted by telephone or using virtual communication technologies?

    Yes, however the rules impose a duty on lawyers and paralegals to inform their client(s) of their intention to do so. The benefits, risks, requirements, and risk management best practices are described in more detail below.

    In the context of COVID-19, where client communication and confirmation of instructions may be more challenging due to remote working, physical distancing protocols, and/or where lawyers and paralegals are attempting to quickly adapt to the use of new technologies in their practices, there are benefits to recording meetings. However, if lawyers and paralegals choose to record such meetings, they should be mindful of the associated risks of doing so and take steps to manage these risks.

    Benefits of Recording

    Some of the benefits of recording a meeting with a client include providing the lawyer or paralegal with the ability to:

    • Capture client instructions where an in-person meeting is not possible due to public health recommendations or protocols
    • Focus on listening and, for virtual meetings, observing visual cues, rather than note taking
    • Transcribe important or complex information after the meeting, and
    • Demonstrate the process followed for the virtual meeting rather than simply documenting it.
     
    Risks of Recording

    These benefits should be considered in the context of the following risks:

    • Access by others to audio or video files of client meetings that were not securely stored, as this may result in breaches of confidentiality or privilege.
    • Some clients may be less open and honest with a lawyer or paralegal if they know they are being recorded.
    • Important client meeting information could be lost if there are limits on access to the recorded files.

    Requirement to Inform  

    After balancing the benefits and risks, if a lawyer or paralegal wishes to record a client conversation or meeting, the lawyer or paralegal must inform the client of the intention to do so. Lawyers and paralegals are prohibited from using any device to secretly record a discussion with a client, irrespective of whether such recording is permitted by law.

    Lawyers and paralegals should be aware that the Law Society rules also require them to inform other legal practitioners of their intention to record them if they intend to do so. Although not required by the Law Society rules, if other persons are present for a meeting that a lawyer or paralegal intends to record, the lawyer and paralegal should also inform such persons about their intention to record them, as there may be other legal requirements to advise persons about the recording.


    Risk Management Best Practices for Recording

    In addition to complying with the Law Society’s rules, to manage the risks of recording identified above, lawyers and paralegal should also consider taking the following steps:

    • Reviewing the virtual conferencing service agreements to determine security, location, and accessibility of recordings and taking appropriate steps to address any issues that arise.
    • Where possible, confirming the intention to record the client in writing in advance. If that is not possible, confirming the intention to record the client at the start of the recording. 
    • Reminding the client at the outset of the call or meeting that it is being recorded.
    • Assessing on an ongoing basis whether the recording of the client meeting is undermining the client freely sharing relevant information with the lawyer or paralegal.


    Last updated: March 30, 2021

  • What are some best practices for using video conferencing in providing legal advice or services?

Client Identification and Verification

  • In the context of COVID-19, can a lawyer or paralegal use a virtual means of identifying or verifying the identity of a client such as video conferencing or telephone?

    At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:

    • Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
    • If only client identification is required, lawyers and paralegals can comply with their professional obligations without meeting face-to-face or via video conference.
    • As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below.


    Because there is no obligation to meet with a client face-to-face to identify the client, lawyers and paralegals should keep in mind the distinction between identifying and verifying the identity of a client:

    Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done by email, phone, video conference, or other forms of communication. There is no requirement that it be completed face-to-face.

    Verifying the identity of a client means looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.

    Verification of client identity must occur face-to-face unless

    • The individual whose identity is being verified is present in Canada and an attestation from a commissioner of oaths or other guarantor is provided; or
    • The individual whose identity is being verified is not present in Canada and verification is provided by an agent.

    For more information, please review the Law Society’s Client Identification and Verification Requirements resources. For specific information about attestations or retaining an agent, please see Appendices 4, 5, 7, and 8.

    Last updated: April 1, 2021
  • What factors should lawyers and paralegals consider before choosing to verify client identity using video conferencing?

    Where a lawyer or paralegal is considering using video conference as a means to conduct face-to-face verification of client identity instead of being in the physical presence of the client or by attestation or an agent, the following factors should be reviewed to help manage some of the risk:

    • Consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if they should proceed.
      • To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.*
      • Stay alert to the fact that persons may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts and to be particularly vigilant for red flags of fraud or other illegal activities.
      • Where virtual methods are chosen lawyers and paralegals must be particularly alert to these red flags to ensure they are not assisting in or being reckless in respect of any illegal activity.
      • Lawyers and paralegals should document any red flags, what measures they have taken to mitigate that risk, and their decision on how they proceeded.
      • If many red flags are present, lawyers and paralegals should consider whether they are permitted to proceed with the matter.
    • Consider using another method of verifying identity that may reduce the risk of fraud or money laundering such as the dual process or credit file methods.
     
    Last reviewed: April 1, 2021
  • How, can lawyers or paralegals manage the risks associated with conducting non face-to-face verification of client identity using video conferencing or telephone?

    After conducting this risk assessment, if the lawyer or paralegal decides to use video conferencing to conduct face-to-face verification of client identity, the lawyer or paralegal should

    • Consider requesting that the client send a high-resolution image of the identification document by secure means in advance of the video conference and asking the client to show the original identification document during the video conference;
    • Ensure that they are reasonably satisfied that the identification document is valid and current;
    • Compare the image in the identification document with the client to be reasonably satisfied that it is the same person;
    • Record, with the applicable date, the method by which the lawyer or paralegal verified the client’s identification; and
    • Document the efforts that were made to verify the client’s identity in accordance with the existing requirements and the reasons why the lawyer or paralegal was unable to verify the client’s identity in accordance with the existing requirements.*


    In response to COVID-19, lawyers and paralegals should be aware that validity periods for government issued forms of identification that expired on or after March 1, 2020 have been extended. For further information, see the FAQ, “In the context of COVID-19, what if a client’s identification has recently expired?

    *[See disclaimer.]

    Last reviewed: April 1, 2021

  • In the context of COVID-19, what if a client’s identification has recently expired?

    Lawyers and paralegals should be aware that provincial and territorial governments are taking measures to ensure the health and safety of their employees and the public. This includes extending the validity of identification documents, including drivers’ licenses, that have expired on or after March 1, 2020, so that in-person visits to renewal facilities can be avoided.

    For the purposes of verifying client identity using this type of identification document, if a person presents a document or information affected by such a decision, lawyers and paralegals must continue to determine that the document is a government-issued photo ID document, but can, until further notice, consider the document or information as valid and current pursuant to its issuing authority, in this case the provincial or territorial government. Alternatively, lawyers and paralegals may wish to consider using another method to verify the identity of the person.

    As the approach to this issue may vary among provincial and territorial governments in Canada, lawyers and paralegals should check with the appropriate authority in the relevant jurisdiction(s).

    Information on the extended validity period for drivers’ licenses in Ontario is available here.

    Last updated April 1, 2021

Commissioning and Notarization

  • Can a lawyer or paralegal use remote or virtual commissioning?

    Yes, but only if certain conditions are met.

    For detailed information on the conditions for remote commissioning as well as its governing legislation, the risks associated with it, practice tips to mitigate risk, and best practice resources, see the Law Society’s Remote Commissioning resource.

    Last updated: April 1, 2021

  • Can a lawyer or paralegal use remote or virtual notarization in the context of COVID-19?

    This guidance replaces the guidance that the Law Society had provided during COVID-19, prior to the Notaries Act amendments coming into force.

    Notarizing is governed by the Notaries Act (the “Act”) and is not regulated by the Law Society. Lawyers and paralegals acting as a notary public are required to comply with the requirements set out in the Act.

    Effective August 1, 2020, amendments to the Act allow for remote notarization if regulations made under the Act so provide and the conditions set out in the regulations are met.

    Regulations permitting or setting out conditions for remote notarization have not yet been made. As a result, the Act does not permit lawyers and paralegals to remotely notarize documents at this time.

    The Law Society will provide updates to the legal professions about remote notarization if regulations are introduced.

    Note: Amendments to the Commissioners for Taking Affidavits Act and a new Regulation on remote commissioning also came into force on August 1, 2020. These amendments and the Regulation enable remote commissioning if the conditions set out in the Regulation are met. For more information see the above FAQs on Commissioning.

    Last reviewed: April 1, 2021

Signing Documents

  • Can electronic signatures be used to execute documents?

    This is a substantive legal issue and is context specific. Lawyers and paralegals should review applicable legislation to determine if electronic signatures are permitted in the context of their matters. For example:


    Note: The Law Society does not regulate how documents are executed.

    Last updated: April 1, 2021

  • Do retainer agreements need to be signed?

    Only where contingency fees are being charged. In most contingency fee matters, the Solicitors Act and its regulation require that lawyers and paralegals use a Standard Form Contingency Fee Agreement, which must be signed by the client and the lawyer or paralegal. For more information, see the question below.

    Although the Law Society requires that lawyers and paralegals enter into written retainer agreements with clients for limited scope representation, there is no requirement that limited scope retainers be signed.

    For all other matters, written retainer agreements are optional. However, as a best practice, the Law Society’s existing guidance materials do recommend that all engagements be confirmed in writing by way of either a retainer agreement executed by the client or an engagement letter. Additional information about the terms to include in retainer agreements or engagement letters is available in the Law Society’s Retainer Agreement or Engagement Letter resource. 

    In order to comply with public health recommendations or directives to exercise physical distancing, at this time, lawyers and paralegals are encouraged to confirm the essential terms of an engagement in writing through whatever means is most practical. For example, lawyers or paralegals may wish to send an email to a client confirming the terms of engagement and asking the client to acknowledge the terms by email. Alternatively, lawyers or paralegals who wish to continue to use written retainer agreements may mail, email, or courier documents to their clients for signature.

    Last updated: July 1, 2021

  • Must contingency fee agreements be signed?

    Lawyers or paralegals who are retained on a contingency fee basis on or after July 1, 2021 must comply with the requirement in O. Reg. 563/20 to the Solicitors Act, to use the Standard Form Contingency Fee Agreement (“Standard Form CFA”) except in limited circumstances. The Standard Form CFA must be signed by both the client and the lawyer or paralegal. There is no longer a requirement that the signatures in the agreement be verified by a witness. 

    In circumstances where a Standard Form CFA is not required, the contingency fee agreement must still be in writing and must include the statements identified in O. Reg. 563/20, unless the agreement or fee is approved by the court. While there is no requirement that a Non-Standard Form Contingency Fee Agreement (“Non-Standard CFA”) be signed or witnessed, as a best practice, lawyers and paralegals should consider having the agreement signed by the client(s).

    For more information on the contingency fee agreement requirements, see the Law Society’s Contingency Fees page.

    Note: Contingency fee agreements entered into before July 1, 2021, must comply with the requirements set out in O. Reg. 195/04.

    Last reviewed: July 1, 2021

  • Do Settlement Agreements need to be signed?

    This is a substantive legal issue andis context specific. Lawyers and paralegals should review applicable legislation and case law to determine if signatures are required in the context of their matters.

    Lawyers and paralegals may wish to consider the following:

    • Courts may enforce informal settlement agreements, including where the terms are agreed to over electronic communications, that are not signed by the parties
    • Certain prescribed settlement forms may require signatures and witnesses
    • The Law Society’s guidance on providing legal services via video conferencing (see the section on Virtual Meetings for more information).

    Regardless of the circumstances of the settlement, lawyers and paralegals should still obtain written confirmation from their clients of agreements to settle on specific terms (by mail, fax, or email), and the settlement should be confirmed between the parties in writing (by mail, fax, or email).

    Note: The Law Society cannot provide advice or guidance about the validity or enforceability of settlement documents.

    Last reviewed: April 1, 2021

Litigation

Real Estate

Wills and Power of Attorney

  • Is remote execution and witnessing of wills and powers of attorney permitted?

    Yes. Bill 245, Accelerating Access to Justice Act, 2021 (“Bill 245”), which received Royal Assent on April 19, 2021, amended the Succession Law Reform Act  and the Substitute Decisions Act, 1992 to permanently provide for the remote execution and witnessing of wills and powers of attorney.

    For a high-level summary of the requirements for the remote execution and witnessing of wills and powers of attorney see the questions below.

    Last Updated: June 11, 2021

     
  • What are the requirements for wills executed and witnessed remotely?

    The requirement that the testator or witness be present or in one another’s presence for the making or acknowledgement of a signature on a will, or the subscribing of the will may be satisfied through the use of audio-visual communication technology if:

    • At least one witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment, or subscribing of the will. 
    • The making or acknowledging of the signature and the subscribing of the will are contemporaneous.
    • Any requirements specified in the Regulations are met (there are none at this time).


    Unless otherwise noted, all other requirements for wills remain in place.

    The above requirements came into force May 20, 2021. For wills executed remotely before this date, licensees should consult O. Reg. 129/20, Signatures in Wills and Power of Attorney (“O. Reg. 129/20”) and Schedule 9 to Bill 245. Licensees should note that the requirements identified above are not identical to those under O. Reg. 129/20. Specifically, licensees are now required to ensure that all signatures required for a valid will are made contemporaneously​.

    Last updated: June 11, 2021

  • What are the requirements for powers of attorney executed and witnessed remotely?
    The requirement that witnesses be present for the execution of a power of attorney may be satisfied through the use of audio-visual communication technology if:
    • At least one witness is a licensee within the meaning of the Law Society Act at the time the power of attorney is executed.
    • The signatures required to execute a power of attorney (i.e., donor and witnesses) are contemporaneously made.
    • Any prescribed requirements are met (there are none at this time).

    The above requirements came into force on May 20, 2021. For powers of attorney executed remotely before this date, licensees should consult O. Reg. 129/20, Signatures in Wills and Power of Attorney (“O. Reg. 129/20”) and Schedule 8 to Bill 245. Licensees should note that the requirements identified above are not identical to those under O. Reg. 129/20. Specifically, licensees must now ensure that all signatures required for a valid power of attorney are made contemporaneously.

    Last updated: June 11, 2021
  • What process must be followed to complete the remote execution of a will or power of attorney?

    The process to complete a remote execution of a will or power of attorney is not prescribed in Bill 245.
    To ensure a consistent process is used and documented, and to mitigate the risks associated with not being in the physical presence of testators, donors, or witnesses, lawyers may wish to consider developing or adopting a checklist which can be used to help them execute wills or commission powers of attorney with the assistance of audio-visual communication technology.

    The following sample materials are provided to assist:
    Counterpart Will Execution Checklist, prepared by Hull & Hull LLP
    Counterpart PoA Execution Checklist, prepared by Hull & Hull LLP

    Best Practices for Remote Commissioning

    Remote Commissioning Checklist

    You may also wish to review LawPRO’s article, Tips to Manage the Important New Changes to Wills Powers of Attorney and Succession Law.

    Last updated: June 11, 2021

  • How can I assist a client who wishes to make a will if neither remote nor in-person execution are possible?

    Where remote and in-person will execution are not possible, lawyers may wish to explore the use of holograph wills with their client. For more information, consider reviewing: 

    Emergency Holograph Wills for Clients in Isolation
    Sample Client Holograph Will Instruction Sheet

    Last reviewed: June 11, 2021

  • Should wills or powers of attorney be executed remotely in all instances?

    No. Although Schedules 8 and 9 of Bill 245 amend the Succession Law Reform Act and the Substitute Decisions Act, 1992 to permanently permit lawyers to remotely execute and witness wills and powers of attorney, there may be times when the execution of a will or power of attorney should not be conducted remotely. For each matter, lawyers should assess the specific circumstances and client instructions to determine if remote signing and witnessing is possible and appropriate. For example, lawyers should consider whether any of the following are potential issues in a particular matter:

    • Lawyer, client, or witness access to or competence with suitable audio-visual communication technology
    • Client capacity
    • Client duress, coercion, or undue influence
    • Red flags of fraud with respect to the will or power of attorney

    If any of these issues are present, lawyers should take appropriate steps. Depending on the circumstances, lawyers should
    • ensure that the issue is resolved to their satisfaction prior to the remote execution or witnessing,
    • decline to proceed with a remote execution, or
    • in some cases, refuse to act in or withdraw from the matter.


    Last reviewed: June 11, 2021

  • Do these legislative changes impact paralegal scope of practice?

    No. Paralegal scope of practice did not change; it continues to be defined by By-Law 4 made pursuant to the Law Society Act.

    While either a lawyer or a paralegal are required to be a witness to remote execution, only lawyers are permitted to prepare and provide legal advice about wills or powers of attorney.

    For greater certainty, nothing in Bill 245, the Succession Law Reform Act, the Substitute Decisions Act, 1992, or the emergency orders previously enacted and extended by the Ontario Government permit a paralegal to prepare a will or power of attorney or to provide legal advice about wills and powers of attorney, including about the operation or effect of the will or power of attorney being remotely executed.

    Last reviewed: June 11, 2021

  • What other supports are available in respect of will or power of attorney execution during COVID-19?

    Practice Management Helpline: If lawyers have specific questions about how to comply with their professional obligations or navigate practice management issues in the context of COVID-19, they may wish to contact the Law Society’s Practice Management Helpline at 416-947-3315 or toll free 1-800-668-7380 extension 3315, Monday to Friday 9 a.m. to 5 p.m. EDT, and select the option to connect with the Helpline.

    Coach and Advisor Network: Lawyers and paralegals can access the Law Society’s Coach and Advisor Network, which provides access to short-term, outcome-oriented relationships with Coaches and Advisors drawn from the professions. Coaches support the implementation of best practices and Advisors assist with substantive and procedural law inquiries on client files. Lawyers and paralegals can request time with a Coach or Advisor here.

    [See Disclaimer]

    Last reviewed: June 11, 2021

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