In recent years, electronic wills have received a lot of attention and have been endorsed by law reform organizations in both Canada and the United States. However, wills are not the only estate planning document to be recommended in electronic form – another emerging trend in the area of wills and estates is the endorsement of electronic powers of attorneys, also known as POAs.  

Last month in the United States, the Uniform Law Commission approved the Uniform Electronic Estate Planning Documents Act, a uniform piece of legislation, which permits estate planning documents, including POAs, to be in electronic form and signed electronically. The prefatory note accompanying the Act points out that the legislation is not intended to change the requirements regarding the validity of estate planning documents in any other manner. In addition to permitting electronic POAs, the Act also recommends permitting electronic trust instruments, advance directives, and “any other record intended to carry out an individual’s intent regarding property or health care while incapacitated or on death”. 

Here in Canada, electronic POAs were first endorsed by the Uniform Law Conference of Canada (the “ULCC”) in 2020. Initially, the ULCC simply passed a resolution, but subsequently, in February of 2021, released Amendments to the Uniform Enduring Power of Attorney Act, which set out model provisions for legislating electronic POAs. Then earlier this year, in June of 2022, the ULCC released a consolidated version of the Uniform Enduring Power of Attorney Act, into which the 2021 amendments have been incorporated (the “Uniform Act”).  

Under the ULCC’s updated Uniform Act, an electronic POA must meet three requirements, besides being in electronic form: 

• An electronic POA must be readable as text when it is made;  
• It must be possible to subsequently access an electronic POA in a usable form; and  
• An electronic POA must be capable of being retained. 

As noted in the commentary accompanying the amendments, these requirements are intended to exclude video documents, at least for the time being.  

The amendments also permit electronic POAs to be executed using electronic signatures, with section 1.1 of the Uniform Act specifying that an electronic POA, and even a resignation of an attorney, are “deemed to be signed if the electronic signature is in, attached to or associated with the enduring power of attorney”. Like a normal POA, electronic POAs must be signed in the presence of two witnesses, either physically in-person or virtually through the use of audiovisual communication technology.   

So far, no jurisdiction in Canada has enacted legislation, which permits electronic POAs, although many jurisdictions permit POAs to be electronically signed and witnessed. In Ontario, for example, a POA can be witnessed remotely using audiovisual communication technology under section 3.1 of the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”). Section 3.1 is a relatively recent innovation – it became part of the SDA effective April 19, 2021, just over 15 months ago, although POAs could be witnessed remotely previously under O. Reg 129/20, which was enacted in response to business closures resulting from COVID-19. 

At Hull & Hull LLP, we will continue monitoring the state of the law, particularly in Ontario and elsewhere in Canada, to see if further steps are taken to legislate electronic POAs. 

Thank you for reading, and have a great day!

Suzana Popovic-Montag