2021 was a year full of unprecedented events here in British Columbia: record-setting heat waves, wildfires, and atmospheric rivers decimating the province’s highways and flooding entire regions. The provincial government brought the COVID-19 state of emergency, originally announced in March 2020, to an end on July 1, 2021, only to declare a second state of emergency on November 17, 2021, because of the severe weather, flooding and landslides. The events of 2021 have been extraordinary, making it clear that with a flip of a switch, the unthinkable can happen.
The unpredictability of 2021 can be paralleled to estate planning, and this article is meant to highlight the key takeaways for estate planning from 2021.
Lesson #1: It’s never too early to plan your estate
Estate planning should be a top priority for everyone. Estate planning is a priceless tool that allows you to control where your assets go and to whom, directly protecting everything you have worked so hard for over your lifetime. Without an estate plan, you will have no control of the distribution of your estate. Having a comprehensive, sound estate plan offers individuals, and their loved ones, confidence in moving forward throughout life.
Lesson #2: You can make sure the decisions being made are the ones you want
The intention of estate documents is to provide an accurate reflection of the specific individual’s wishes when it comes to their estate, or what is to happen if they lose capacity and cannot make decisions on their own. An estate plan is tailored specifically to the individual and legally binds others to ensure those wishes are respected. Without estate planning, an individual loses control over arguably the most important components of their life.
Lesson #3: Be prepared for the unthinkable and plan for incapacity
No one expects the unthinkable to happen to them, but after the unprecedented events of 2021, it seems the unthinkable may be right around the corner. While thinking about death or losing capacity isn’t something people enjoy contemplating, it is incredibly important to have a plan. Having a Last Will is the most common estate document, but planning for incapacity during your lifetime is just as important to an estate plan.
Incapacity planning typically involves two documents in B.C.: an Enduring Power of Attorney, granting authority to a named attorney to make financial and property decisions on your behalf, and a Representation Agreement, granting authority to a representative to make healthcare decisions on your behalf. These legal instruments express your wishes for what you would like to happen if you no longer have the capacity to make your own decisions. Having an incapacity plan in place ensures you are prepared.
Lesson #4: Technology can help you accomplish your estate planning goals
In a time of physical distancing, periodic self-isolation, and frequent video-chats, the practice of law needed to evolve to keep pace with the 2021 trends of social interactions. There have been two significant advancements with technology and estate planning in 2021.
First, B.C. introduced electronic wills, capable of being electronically signed, electronically witnessed, and digitally stored on a computer. This means, if a person so choses, there does not need to be an original, wet-ink, physical will document, but rather just an electronic version of a will, with electronic signatures. These amendments, introduced to the Wills, Estate and Succession Act, came into force on December 1st, 2021, by virtue of Bill 21. British Columbia is the first province in Canada to allow electronic signing of wills. To read the provincial government’s full news release, please click here. While there may be various benefits to electronic wills, they are brand new legal instruments and have yet to be commented on by a court of law. For a further discussion on electronic wills, please see our firm blog post Why You Should Be Cautious about Electronic Wills.
Second, remote witnessing of estate documents is an excellent way technology has changed the landscape of estate planning. Remote witnessing allows lawyers and clients to witness estate documents in separate locations, simultaneously over video-chat, and sign the documents in counter-part. It was first introduced as a temporary measure at the outset of the COVID-19 pandemic, but is now permanently available to B.C. residents. This shift not only promotes access to legal services for individuals who may not otherwise be able to travel to a lawyer’s office to sign documents, but also provides safe alternatives to in-person meetings.
If you’re interested in developing or updating your estate plan, please do not hesitate to contact our Estate Practice Group leaders, Tamara Dewar and Timothy N. Grier.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.