COVID-19 and Capacity Issues in Wills and Estates

How do you assess capacity to make a will remotely?

The main principles are the same as if you were assessing capacity to make a will in person: know who your client is and only obtain instructions from that person; apply the correct test for testamentary capacity; remember that capacity is time, task, and situation specific; go through documents the client has brought with them, look them in the eye, watch if they are just reading a script or their notes or if they are actually understanding and manipulating the information to relay instructions to you; ask probing and open ended questions. 

You need to do these same things on the phone or by video call, but of course it will be more challenging to do so. Here are some tips for assessing capacity to make a Will remotely. 

In advance of the initial meeting:

• Send a preliminary letter to the client that: 1) Explains the test for testamentary capacity and the types of questions you will ask so that they can prepare for the meeting; and 2) Asks the client to complete a Will Questionnaire in advance of the meeting.
• Obtain the external neutral documentation and completed will questionnaire from the client in advance – You need this external information in advance so you can review it and compare the client’s answers at the initial phone or video call to it.
• Ensure the client has a private space from which to speak to you. The client may need your assistance in arranging this if they live in a nursing home, retirement home, or are in social isolation with members of their family in a small home. 

During the initial phone or video call: 

• Ensure that you are getting answers from the client and not from any other person. 
• Ensure that there is no other person on the phone or in the room with the client (unless it is a joint retainer, for example between spouses).
• If it is a joint retainer and you are making wills for both, make sure you give both clients an opportunity to answer questions and relay instructions.
• If you suspect your client may have capacity issues or be vulnerable to undue influence, then consider having a second person from your office on the phone or video call to take notes and to assist you in observing whether there is any one else on the phone or in the room coaching the client as to their answers.
• If on the phone – pay attention to long unexplained pauses by the client, or other voices in the room. Revisit any questions or instructions that the client may have relayed after such long pauses or other voices being heard. 
• If on video call – pay attention to where the client is looking – are they looking at the screen or you via the camera or are they looking somewhere else in the room as if there is someone there coaching them? Are they reading from notes and not able to answer your questions without reading from notes? 

After the initial meeting: 

• If you feel the client has borderline capacity to make a will, consider having a second phone or video call prior to preparing the draft will; after sending the draft will to the client, review the draft with the client over the phone or video call (prior to finalizing the document) and make notes regarding their capacity at that time as well.
• Remember, if the client clearly does not have testamentary capacity, you cannot take instructions to make the will, pandemic or no pandemic.  Where the client has borderline capacity or sets off some red flags about capacity, but you ultimately decide they are capable enough to do the will, if possible, try to do the signing meeting in person with strict physical distancing protocols, especially where you took the initial instructions via phone or video call. 

If there is a rapid decline in health after you take the client’s instructions to make a will, what issues should you consider? 

Case law provides that a will may still be considered valid even if the testator’s capacity declined by the date of execution so long as the testator was capable when they gave the lawyer instructions to prepare the will. 

If the rapid decline in health impedes the client’s ability to physically execute the will, in the current pandemic situation, you need to consider what is the best and safest way for all to get the will executed. The client will likely not be able to come to your office where you can control the safety measures and ensure proper execution, or may not be able to come to their front or back yard or the sidewalk for the signing. It may not be safe or permissible for you and your second witness to attend the hospital if that is where the client is.

Virtual witnessing  may be the only option, but the client may need assistance in setting up and accessing the video call, doing the signing on their end, and then getting the document back to you for you to sign as witness. 

In this case, ensure that the person providing that assistance is not a beneficiary or beneficiary’s spouse. 

Unique issues re Powers of Attorney for Property and Personal Care 

Remember that POAs are distinct from Wills, governed by the Substitute Decisions Act, 1992, (SDA) not the Succession Law Reform Act.  Tests for capacity to grant POAs are set out in the SDA:  capacity to grant CPOA – s. 8; capacity to grant POAPC – s. 47. 

In assessing capacity to grant POAs, the main principles are the same as above: know who your client is and only obtain instructions from them; apply the correct test for capacity; remember capacity is time, task, and situation specific; review neutral documentary information to compare to the client’s answers; ask probing and open-ended questions. 

In your preliminary letter to the client, set out: the different tests for capacity to grant CPOA, and capacity to grant POAPC; describe the types of questions you will ask; request neutral third party info in advance to compare the client’s answers against; make sure the client thinks ahead of time about who to appoint and alternates (in case all members of the household in isolation together get sick at the same time); make sure the client thinks about any advance care planning wishes they want to document. 

Important distinctions about POAs to remember: 

1) The different tests for capacity to grant POAs versus test for capacity to make a will (client may be capable of doing one of these tasks, but not the others. )

• During this crisis, it will be even more difficult to assess capacity of a vulnerable person, especially if they do not have access to technology. You are required to get capable instructions from the client – but remember that capacity is task specific, so even if the client can’t grant a POA for property for example, they may still be able to grant a POA for personal care and document their advance care planning wishes. 

2) The different consequences for the client if a POA is improperly made, made without the requisite capacity or made under undue influence: 

• Borderline capacity with wills – case law says make the will and let the beneficiaries bring forward any challenges afterwards if necessary.
• The same is not true with POAs. If capacity to grant POAs is borderline, or hard to assess because you can’t access the person due to physical distancing, the harm to the grantor, if capacity is actually lacking or if there is undue influence, is much greater because the POA documents are effective when the person is alive and may need their funds for their care costs and basic expenses, or where they need an appropriate attorney for personal care who will make personal care decisions properly. 

3) No such thing as holograph POAs like there are for wills – must have two witnesses. 

4) Different restrictions for POAs than for Wills about who cannot be witnesses:

• s. 10(2) of the SDA - Persons who shall not be witnesses to CPOA or POAPC: 

          The following persons shall not be witnesses: 

        1. The attorney or the attorney’s spouse or partner. 2. The grantor’s spouse or partner 3. A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child. 4. A person whose property is under guardianship or who has a guardian of the person. 5. A person who is less than eighteen years old. 

5) Role and duties of attorneys for property and personal care: 

• The duties of a fiduciary continue to apply during the pandemic.
• Make sure you give information about the role and duties of attorneys to the client.
•  Encourage the client to give this information to the named attorneys.
• In the current climate, where many people are under extreme stress, may be experiencing financial hardship, or may have logistical difficulties, there is greater room for error or abuse in the exercising of attorney duties and power. You need to caution clients about this at the front end, help them choose the right attorneys, and advise them as to how to hold attorneys accountable for their actions, even during the pandemic.  
• For more information see Goddard Gamage LLP info sheets Role of an Attorney for Property and Role of an Attorney for Personal Care: https://www.ggslawyers.com/resources